September 30, 2022

By TONY MOCHAMA

The title of this book, Power, Politics & Law: Dynamics of constitutional change in Kenya (1887 – 2022) by Prof Githu Muigai (with Dan Juma) could be boring and academic but the issues discussed are as interesting as the current political situation in Kenya today. In fact, reading this book, one gets to understand how and why Kenyan politics is where it is today.

The politics played out at highest octane levels right from the beginning of the year, and ended on August 16, when Dr William Ruto, the deputy president and leader of the Kenya Kwanza political alliance was declared winner of the 2022 presidential election, on his first stab at the presidency.

His rival and the man he beat, Raila Odinga, has rejected the results and is headed to the Supreme Court. This books mentions both men as being among the lead actors in the making of the 2010 constitution in a convergence of power, politics and law.

In his own words, Prof Githu Muigai, a former Attorney General of Kenya for most of the 2010s, calls this book his ‘’valedictory lecture.’’

Right from the foreword, by former Chief Justice Willy Mutunga, to the list of authorities, preface and Table of Cases, one knows right away that they are in for more of an academic treatise than an insider’s treat from the actual thriller of being a player in one of the continent’s most intriguing politics. Yet it is nowhere near boring. Afterall, it is Prof Muigai, the man of law and not former Attorney General Githu, chief government adviser, who authored the book.

The book, published by Kabarak University Press, starts off in 1887, where African legal experiences were considered to be operating in ”a constitutional wasteland’’ and where eventually native law was always secondary to English Law, historically because the “original doctrine of English laws was that the laws of infidels are abrogated upon European conquest.”

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The book then delves into the politics of constitutional change and statis in the post-World War years (1945 – 1960), as it examines the political dynamics and contexts of constitutional reform, tensions between constitutional change and political stability, and the power constraints and contradictions at play in the broader locus of post-War constitutional development.

The dangers of the formulaic Constitution at the start of the 1950s that “frustrate African aspirations at every turn” are mentioned, as is the “calling to order of Africans by force,” following the declaration of emergency– after the Mau Mau uprisings — on October 20, 1952.

The Kanu versus Kadu political party struggles in the early 1960s at the Lancaster Conferences is also well-captured, with the gist being how the former wished for a centralised as opposed to the regional governments favoured by Kadu politicians. This thread goes right up to the Third Constitutional Conference.

But Prof Muigai is also anecdotal and tells the well-known real story about how Kenya’s first president, Jomo Kenyatta, got his then Attorney General, Charles Njonjo to insert a new clause into the Law of the Land, extending the prerogative powers of the president to over-ride election rules and regulations.

This was done purely to give Kenyatta’s crony, Paul Ngei, a fighting chance to get back on the ballot after being technically disqualified from a by-election to defend his seat. One wishes there were more tales like this, to anecdotally capture the convergence of power, politics and law. It would actually explain how changes in law and the fight to changes the supreme law over the years affected and shaped Kenyan politics.

Fast forward to 1995, the author tackles the failed political transition and the weakening of the opposition, inducing the ascendance of civil society groups, which have been instrumental in Kenyan politics since.

It is these groups — scholars, social activists, religious leaders, journalists, and university students— that forced the government into having the Constitution of Kenya Review Commission, which led to the National Constitutional Conference.

Raila Odinga, Kiraitu Murungi, Simeon Nyachae, Musikari Kombo, Amos Kimunya, Uhuru Kenyatta and William Ruto are mentioned as seven lead political pact partners at the various high level meetings which were the beginning of the process that eventually led to the failed 2005 referendum and five years later, the 2010 new constitution.

But their individual contributions at subsequent meetings or lack thereof, go unacknowledged. The author also prefers to do this the academic way as opposed to merely anecdotal.

In conclusion Prof Githu reveals his panacea to the disturbing political triad of power, politics and law as civic constitutionalism.

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