Thursday, November 22, 2007


To me the rules of political transition are the proper yardstick for measuring the efficacy of any country’s constitution.”[1]
As the clock ticks away slowly towards the 2007 General Elections in Kenya, many constitutional issues rein supreme as to the manner in which such elections will be conducted and their ramifications on the Kenyan society thereafter. This has seen the rise in the anxiety permeating Kenyans of all walks of life as to the issue of the imminent political transition as the current president prepares to hand over executive power to his successor in what is expected to the most competitive elections ever to be witnessed in the Kenyan political history. Thus assuming that the incumbent President will stick to the promise he made during the 2002 presidential elections campaigns that he would serve for only one term, then it would suffice that the country expects to have a fresh President come the 2007 General elections. With this in mind it becomes quite paramount that a systems check be conducted to ascertain the preparedness of the country, legally and otherwise, to oversee a smooth political transition from the current political transition to the next.

A perusal of the Kenyan legal system reveals the stark reality that there are no adequate substantive and procedural laws legislated upon on the field of transition law. Similarly, there exists little jurisprudence amongst Kenyan scholars on the aspect of the management of political transition in the country presumably due to the fact that the subject was hitherto deemed as non-controversial in the one-party era when transition was mainly a party affair rather than a national affair. However in the present situation of multi-party democracy, the clear determination of presidential succession becomes a major legal issue.
Given that the field of the study is quite wide and that most of the jurisprudence thereon has tended to concentrate mainly on issue of pre-transition and transitional justice (a more generalized approach)[2], I have opted to pursue the often neglected but equally, if not more critical issue of Lego-institutional framework of managing the actual transition from the incumbent presidency to the incoming presidency. Thus, my approach to the issue is in line with that taken by D. Mamadou[3] that the political transition is “…the interval following the reign of one regime and preceding the next”.

The essay explores the three periods of political transition in the foregoing sense experienced in Kenya, that is the 1964 independence transition period, the 1978 Kenyatta-Moi transition period and the 2003 transition from Moi to Kibaki presidency. Here, the manner in which each transition was conducted out is briefly analysed pinpointing the various strengths and weaknesses exhibited by the political system in dealing with challenges accompanying the respective transfer of power.

Next, the present situation with respect to transition is considered especially with regard to the factual situation on the ground in so far as the challenges that are likely to face any impending succession process in the country. In the same vein, the various Kenyan laws relating to transfer of presidential power are analysed with a view to ascertaining their adequacy or otherwise in meeting the aforementioned challenges. Comparison is also made with the situation in other selected states with a view to gauging the strengths and weaknesses of the Kenyan system in order to improve it.

In conclusion, numerous recommendations are made of measures which ought to be implemented in the legal and institutional framework of midwiving the smooth hand-over of power in terms of legal review of the various relevant and also the establishment of an efficient institution for overseeing the actual transition. Also, recommended is the creation of an effective framework for monitoring the disposal of state property and personnel during the transition period. 
The scope of political Transition Foremost among the political challenges facing most if not all African and by extension other Third World countries is the issue of political transitions and its attendant goal of achieving legitimisation of political systems. The former has incessantly been the occasion of not only political bickering but also violent upheavals in many of these states in their post-independence life. Indeed Vincent Khapoya has observed, thus, “The majority of African Governments…. have faced many problems of one kind or another normally expected of new states emerging from a colonial period of either oppressive experience or benign neglect…one these…being {that} of peaceful and orderly transition from one regime of leadership to another”.[4]To be sure, very few post-independent African states can genuinely say to have had regular, smooth political transitions. Thus, except for the few of whom South Africa is an ideal example, other African states bear testimony to the repercussions of lack of legal and institutional mechanisms to facilitate well-co-ordinated political transitions. However, in other states the foregoing has been occasioned by the Big Man Syndrome ailing most African heads of state as asserted by Prof. Nwabueze[5] thus, “The greatest malady of the politics of emergent states is the unwillingness of the rulers to relinquish power. Political officers tend to become life appointments, resulting in a stratification of the society between the underprivileged masses on the one hand and a permanent class of rulers on the other. To perpetuate this rule, the politicians pervert the political and electoral system and stifle any kind of opposition.”

Not much jurisprudence is available locally on the issue of political transition as viewed from a legal pespective. This is presumably because Kenya has so far, in fact, had only three periods of substantial political transition; the second being almost an inheritance so to speak. Thus, my take on the definitive aspects of the topic is generally informed by foreign jurisprudence. Mamadou[6] in defining political transition has held it to be “..the interval following the reign of one regime and preceding the next,[during which period] confrontations seem to focus on the nature of the political institutions to be established, the advantages that should be given to interested parties and the set-up and redistribution of political resources….”Thus, this is a critical period in a country as it puts to test the very stability and cohesion of various players in the political scene and determines whether the country is to continue upholding democratic ideals or not. It is basically a time of promise but at the same with potential of crating instability and insecurity as social tension, intolerance, excessive patriotism become rife and if not checked might culminate in civil strife. Thus, the very organisation of the government, the core of every political system becomes very pivotal in trying to contain the attendant challenges to normal forms and procedures of democratic rule. 
KENYA’S TRANSITIONAL EXPERIENCE Ng’eno[7] argues that, “the discussion of succession aspects within the context of elections can be said to revolve around some important issues notably the character and impact of colonial legacies, the nature and content of independence constitutions and the behaviour of political elites after independence and the fluidity of the variables operating upon the[such as intra-party rivalries centred on various groupings of the elites.” Thus, the present discourse of [political transition of political transition has to start with the formative years of pre- and post independent Kenya all through the 1978 succesional transition and ultimately to the 2002 first multi-party presidential transition.

The political transition expected at this time was one, which was expected to give effect to the visionary Kenya, which many natives had at that time. It was an euphoric time with potential promise but also darkened by the prospect of resultant instability and insecurity. A cynical analysis from an historical viewpoint would deem the Kenyan nation to have been a rather poor experiment in nation making from the word go. A Marxist historian would say that from its very inception, the capitalist nation contained the very seeds of its destruction. This would be informed by the fact that Kenya as a state “was [and in many ways] still remains a loose coalition of ethno-nations whose common denominator is conquest by the British and the attendant racial subjugation.”[8] Many were the desires held by the various racial and class segmentations for entrenchment of guarantees to their continued well-being after independence. There were the overriding desire by the landless African populace to have land held by the settlers repossessed by the new African government and be redistributed amongst themselves as a means of redressing historical injustices visited upon them by the white minority. Other landed Africans (the petty bourgeoisie) sought to protect its property and also positioned itself in a way to reap the economic benefits of the newly acquired freedom. On the other hand, the settler population were fearful that their ill-acquired wealth and property would be expropriated once the new government swept into power and thus sought guarantees that the foregoing would not happen. All these conflicting expectations meant that the political transition had to be delicately handled to maintain cohesion of the social fabric. In essence therefore, the euphoric wave sweeping the country had to be replaced by a sense of realism especially so in balancing the various viewpoints and contestations prior to the transition from colonialism to African self-rule.

The 1964 were merely symbolic in nature, the actual taking over of power having been done in 1963 after the so-called “Majimbo” elections. These elections pitted the two major political parties then, that is Kenya African National Union (KANU) and Kenya African Democratic Union (KADU) both having been formed in 1960 following the relaxation of the restrictions placed in 1952 on African political activities. KANU though purporting to have a national outlook was basically a marriage of convenience between the two major tribal groups-the Kikuyu and Luo and had radical, or if you will, progressive characterizations as was enshrined in its manifesto. It advocated for nationalism (read-africanisation) of the So-called White highlands and had a progressive foreign policy particularly bend on pan-africanism. KADU on the other hand was perceived to be at its very core no more than a mere a tribal club having backing of the settler populace. KADU campaigned on a regionalism (majimboism) platform and capitalised on the apprehension gripping the minority tribes, such as the Kalenjin and the coastal tribes to gain a considerable platform. However, both parties lacked a sound mass base and therefore operated on a parochial basis. KANU took advantage of the populist issue of the release of Jomo Kenyatta from detention to give itself some resemblance of credence and legitimacy with the masses. Kenyatta was then widely perceived to be above intra-and inter-party rivalries, courageous and politically experienced. The foregoing compounded by the ironic twist of fate of his being detained for allegedly managing Mau Mau gave him a mythical aura which endeared him to the masses making him the natural leader. Thus, Kenyatta was able to secure victory for KANU, which then formed the Government.
Thus, in retrospect it can be said that elections had assisted in the process of orderly transfer of power to a new political dispensation. As aforementioned, the new KANU government had to endear itself to the various interest groups in the country. Thus having secured the support of the African masses it turned to the economically entrenched group, the settlers. In a surprising turnaround, the new regime hastily dropped its perceived radicalism and through the enactment of the 1964 Foreign Investment Act sought to assure all foreign investors (mainly investors) that their assets would not be expropriated. In so doing, it started the process of its alienation from the aspirations of the common man and its pursuit of petty-bourgeoisie alignment. This is presumably why the actual transmutation of Kenyatta from Prime Minister to the presidency had to be conveniently done through constitutional fiat[9] rather than by popular democracy. 
THE 1978 TRANSITIONAL PERIOD The foregoing constitutional amendment, which attended the 1963 General Elections, ensured a smooth transfer of power from colonial to the presidential system. This amendment (the first in post independence Kenya) laid down the methods of electing a president combining the popular election with a General election to the General assembly or for the constitution of the National assembly as an electoral college at any other time when it becomes necessary to hold presidential elections. However,it did not provide for automatic assumption of the Vice-President into the office of President in the vent of the premature termination of the sitting president’s term of office.However,with serious questions abounding on the president Kenyatta’s deteriorating health and with no clear front- runner or named heir in KANU to succeed him, it was considered that elections conducted by the National assembly would have unpredictable results as the enabling provision had presumed that there would always be an undisputed leader[10].
Thus, various attempts were made to remedy the foregoing, the first being the unsuccessful attempt to provide for an automatic succession by the Vice-president followed later by constitutional amendments doing away with the electoral role of the National Assembly and vesting such on the then ruling party to so nominate the successor incase of vacancy. This had the effect of removing such a vital role from the public (via their representatives in Parliament) to the inner sanctum of the party.

The then Attorney-General, Charles Njonjo, curtailed subsequent attempts to enact provisions for immediate election to the presidency incase of vacancy arguing that such an amendment amounted to treason as it” contemplated death of the president”. A constitutional amendment[11] was made stipulating that “consequent upon the president dying in office, the Vice President shall take over power for an interim period of three months and thereafter presidential elections would take place.” However, a group styled as the ‘Gatundu Group’ or ‘Change The Constitution Group’ mainly made up of close cronies of President Kenyatta began orchestrations to have the automatic succession power vested on the speaker of the national assembly instead of the vice-president. It was their proposal that the speaker would at this time act as the president but without executive powers arguing that the vice-president as acting president would be tempted to invoke emergency powers to perpetuate his hold on power or to detain prospective presidential candidates thus putting him at an unfair advantage over the rest in the subsequent election. However, such a move would have created the very power vacuum the constitution had sought to avoid[12]. Njonjo, who warned the proponents that they risked being charged of treason, put this campaign to an end[13]

On Kenyatta’s demise on 22nd August 1978,arrangements were swiftly put in place to ensure a smooth, peaceful transition presumably by the ingenious Njonjo.An emergency cabinet meeting was soon convened in which the then Vice President, Daniel Moi was sworn in as the new “stop-gap” president. The latter had increasingly positioned himself as the likely heir more so after the other aspirants like the doyen of opposition politics in Kenya, Jaramogi Oginga Odinga had been relegated to the sidelines of Kenya’s national politics following the Limuru conference while others like Tom Mboya, Ronald Ngala and J.M Kariuki had passed away in rather questionable circumstances. Even so it is arguable that Moi’s ascension into power was primarily enabled by the fact that his major opponents, the GEMA tribal outfit were caught napping by the sudden death of Kenyatta and so in their state of shock they could not marshal the energy to oppose his being sworn in as president.

It is also arguable that KANU as the sole political party also played a crucial role in facilitating the smooth, peaceful Moi succession to the presidency. This was ironically because due to the intra-party rivalries experienced by the party in the late 1960s upto the 1970s had left it so weakened in its organisational structure that it was unable to effectively solve the problem of succession on its own. The party had essentially become a loose coalition with most of is leaders more concerned with affairs of the national government rather than with the party except during election time. This meant that KANU had no independent voice of its own and thus had to rely on assistance from those in power at that time, a role the then powerful Attorney General, Charles Njonjo played superbly. Also, the ethnic factor came into play in that Moi by virtue of coming from relatively politically insignificant Tugen sub-tribe of the Kalenjin community he was an agreeable candidate to the politically pre-dominant Kikuyu tribe as he had no major political base and as well to the other non-Kikuyu ethnic groups who abhorred another Kikuyu president since the Kikuyus were held to have been incessantly trying to [perpetuate their domination in the political and economic helm of the country.

Another factor that contributed to the smooth political transition in 1978 was the largely neutral stance taken by the military in the events taking shape during the transitional period.[14]The neutrality of the military at this very critical period was arguably enabled by the fact that the then Defence Minister, James Gichuru, a perceived anti-Moist had become virtually incapacitated by old age and ill-health as to be able to give direction to the forces and thus command was left at the professional Chief of Defence staff enabling the non-interference of the military in the transition. In addition, the paramilitary General Service Unit (GSU) the historically perceived to be the praetorian guard of the political regime was at that time headed by a close Njonjo ally, Ben Gathi, thus, precluding any expectation of a military or paramilitary coup[15].

Thus, the aforementioned factors combined to enable an unexpected smooth transfer of power from the late president to the new Moi regime. It also enabled the “stop-gap” president to exercise unfettered the full presidential powers. The “stop-gap” president was to legally assume full presidential powers through the party machinery having been unanimously elected party president and thus the sole candidate for the 1979 presidential elections. Thus, on the his nomination papers being handed in to the Electoral commission by the then acting KANU Secretary- General, Robert Matano, Moi was declared the president- elect and thereafter sworn-in as the country’s second president effecting the Kenyatta-Moi presidential transition.

Vojin Dimitrejic[16] has asserted, “In those countries where the former establishment was sufficiently strong and conceded pluralist democracy under strong internal and foreign pressure, the regime did everything to present new democracy as chaotic mockery. An array of silly, marginal parties and eccentric candidates contributed to this picture.” The foregoing scenario was replayed in Kenya during the 1992 and 1997 general elections. Both elections came in the wake of introduction of multiparty democracy in the country following the repeal of section 2A of the Constitution. This had been occasioned by the Moi administration bowing to concerted pressure from various internal and external bodies including the International Monetary Fund, the World Bank, Western diplomatic missions, religious organisations, civil society, academics and the common citizenry to allow for the opening of the democratic space. Thus,for the first time in post-independent Kenya, pluralism was allowed in Kenya politics with various parties emerging to contend for political power.However,the incumbent president drawing from his long political experience manipulated the already uneven political playing field to his advantage thereby winning both elections in succession.

In both elections Moi capitalised on the tribal factor of the Kenyan politics to divide the possible voter base of the then formidable opposition. Further he encouraged the formation of many political parties with no clear ideological or political vision which all sought to produce the incoming president. Many of such parties and their leaders were fed by mere greed for power and ethnic chauvinism that played to the advantage of the incumbent president as it weakened the appeal of the opposition to the masses. This enabled Moi to be re-elected on a plurality of 28% in 1992 and a relatively similar margin in 1997.It has been said that, “As a nation passes through different cycles of its existence, its systems of Government will be affected accordingly. Every deep crisis with it a challenge to normal forms and procedures of democratic rule.”[17]Kenya as on the General Election day of 28th December 2002 had not enacted clear provisions with respect to the momentous anticipated political transition. It was indeed a momentous time as the incumbent president, holding all factors constant, was expected to retire from active politics by virtue of section 9(2) of the Constitution having served the requisite two terms.

The 2002 transition period saw some developments akin to those in the 1963/64 one leading the period to be coined as the second Liberation of Kenya. For instance this period saw the overhaul of the leadership status quo with defeat of the then ruling class by the opposition. Also, the 2002 elections just like the 1963 elections saw a marked reduction in the influence of the largely tribal political parties and their replacement by fewer, larger parties with a seemingly national outlook. Thus, the various arguably tribal parties such as Democratic Party of Kenya (DP)-Kikuyus, Ford Kenya-Luhyas, and the Social Democratic Party (SDP)-Kambas, teemed together with the KANU defectors going under the Rainbow Alliance to win the elections under the National Rainbow Coalition (NARC) banner against the then ruling party, KANU.The latter had been hugely weakened by the en masse defections of the Rainbow luminaries as a result of the anointing by the outgoing president of a son of the First Kenyan president,Uhuru Kenyatta,as his preferred successor a move seen as a betrayal by his hitherto loyal aides including the then Vice-president,Musalia Mudavadi[18], the immediate former Vice president, George Saitoti and several cabinet ministers led by Raila Odinga and Kalonzo Musyoka.

Another feature of the 2002 transition that reflected the 1963/64 one was in the manner in which elections and actual handing over of power was carried out. As regards the elections, the protocols, niceties and merits determining the validity or otherwise of persons seeking the various elective posts were mainly disregarded in light of the euphoric wave that was sweeping the nation. Thus, candidates standing on Narc tickets in Pro-NARC zones like Nyanza and Coast provinces easily won their seats notwithstanding their moral or educational suitability thereon and vice versa in pro-KANU zones like Many parts of the Rift Valley, Central and North-Eastern parts. Thus, Kenyans seemed to have lost the all-important lessons learnt from the independence transition that it would take more than a mere change of guards to make a difference on their lives. Thus, arguably the removal of Moi from power was no more than an act of disposal of a hated despotic ruler rather than the reversal of a socio-political system that was in dire need of a radical overhaul. Thus Kenya fell in line with the assertion made by Hermit,[19] that, “the salient feature of political change.. developing third world countries has not been the development of strong political institutions and the integration of these typically plural societies into viable national political systems but the process of political decay.”

The Moi-Kibaki transition was arguably not properly and Constitutionally managed. My argument is premised on the fact that the outgoing Moi-administration was perceivably reluctant to provide proper handing over of power as it was still trying to come into terms with its unprecedented defeat. Also, the incoming NARC Administration and its supporters were anxious to have power transferred as soon as possible because of the demonstrated reluctance of the former regime to hand over power. In addition, the new regime was justifiably afraid that the outgoing administration would if given ample time attempt to establish networks to frustrate the measures expected to be put in place by the new administration to redress the various historical injustices perpetrated by the Moi regime. This was to be done in fulfilment of the pre-election pledges it had made to the electorate. This factors contributed to the chaotic and hurried manner in which the transition was conducted in utter disregard of laid down protocol though fortunately it was without major violent scenes, a fact which is to be attributed to the professional nature of the armed forces under the able leadership of General Raymond Kibwana (now retired) which remained strictly aloof of the going-ons.

The Kenyan law with respect to the transfer of power to an elected president is basically contained in the constitution, the National Assembly and Presidential elections Act and the Promissory Oaths act. Of most importance to the present discourse are the constitutional provisions with regard to the conduct of presidential elections and for the period of transition pending g the handing over of power, or if you may will, the swearing in of the president-elect.essentially,as per the constitution, the presidential term of office is tied to the life of parliament such that whenever there is a general election, there is a presidential election. To be sure, section 5(5) of the Constitution provides, thus, “Whenever parliament is dissolved an election of a president shall be held at the ensuing General election.”Thus, by virtue of this section as read together with section 9(1) as well as section 59(4) of the constitution it suffices to say that the parliamentary and presidential terms are inseparable such that the dissolution of parliament automatically brings to an end the presidential term of office. Thus, in managing any political transition it becomes critical that the two terms should run concurrently. However, ideally wherever the parliamentary and presidential terms are left to run their full course uninterrupted, they would expire at different dates: the parliamentary one being the last to expire.

An illustration of the foregoing assertion can be taken of the 1998-2002 term of office of then president Moi and the parliamentary term at the same period in time. Moi was sworn in as President for his final 5-year term of office on 5th January 1998[20]He was ineligible to seek re-election upon the expiry of this term of office under section 5(3) of the constitution but was required under section 9(3) of the same to continue in office until the president-elect assumed office. Thus, his presidential term of office conceivably was supposed to expire on the midnight of 4th January 2003.For the same period, his parliamentary term of office took effect as from 3rd February 1998[21] upon the swearing-in of the Members of Parliament[22]. Thus, his parliamentary term, just like those of the other MPs, commenced on that date and his term expired on the 2nd February 2003:28 days after the expiry of his presidential term of office. Thus, had the president not dissolved parliament immediately before or on the expiry of his 5-year term, the life of parliament and that of the presidential term would not have been coterminous leaving room for a constitutional crisis. Thus, in future it would be critical for the sake of orderly transition of presidential powers to the president-elect that the timing of both presidential and parliamentary elections should be carefully looked at.

The most critical aspect of political transition from one presidency to a new one is the issue who legally executes the presidential powers and functions during the transitional period. One might be tempted to say that upon one being declared as the president by the chairman of the Electoral Commission of Kenya (ECK), he/she immediately becomes legally entitled to execute any of the presidential powers and functions. Such reasoning would be informed by section 7 of the Constitution, which provides, thus, “A person elected as president shall assume office as president as soon as he is declared to be elected”. However, the foregoing argument would have lost sight of section 8 of the constitution which provides that, “A person assuming the office of president shall before entering upon the office take and subscribe to the oath of allegiance and such oath for the due execution of his office as may be prescribed by the constitution or under an Act of parliament.”Thus, there is time lapse between the time of declaration and time of actual assumption into office in which time there is no clear wielder of the presidential powers. However, the constitution allows the outgoing president to “continue in office until the person elected as president at a subsequent presidential election assumes office.”[23]This is meant at avoiding a power vacuum and ensuring continuity as well as smooth transition. However,the provision is one open to possible abuse in its failure to stipulate the maximum duration of holding-over at any given time.Thus,the outgoing president may rely on it to attempt to cling onto power beyond the reasonably expected transitional period on the pretext that his successor is yet to assume office. This may even tempt such outgoing president to use the military arm of government to defeat any attempt at the handover of the instruments of power[24].

Another fundamental issue to any constitutional lawyer worth his salt would be one with regard to what extent can the incumbent president exercise the presidential powers during the transitional period and what restrictions are legally in place to check such exercise of power. For, instance whether he is still the commander-in-chief during the holding over period, Equally important is the issue of whether any of the political appointments to constitutional offices or presidential acts of clemency and pardon of convicted offenders during the foregoing time are clothed with legal validity and thus binding on the incoming regime or whether they are subject to ratification or rescission by the incoming administration as soon as it is sworn in. The same issue arises with respect to contracts and industrial agreements entered into by the outgoing president personally or through his appointees during the transitional period: whether the new regime is bound to honour them. The jury is still out on these issues and thus a legal redress of this lacuna in constitutionality is long overdue. However, note should be made that with regard to those appointments made by the outgoing president to offices with constitutionally entrenched security of tenure, such cannot be terminated arbitrarily but must be done only where the relevant laws sp permit and following the laid-down procedure. Also, such matters should be handled delicately giving due regard to the tribal undercurrents which attend any political happening in the country.

It has been a point of academic contention as to whether it is legally mandatory or it is merely a matter of custom for there to be a formal ceremony of handing over of the instruments of state power and inauguration of the president-elect. It is arguable that given that the constitution only recognises the taking of the oath of office and allegiance before assumption into office as mandatory, then the handing-over ceremony is merely administratively desirable rather than legally mandatory. Hence, such a ceremony can be dispensed with if the circumstances do so dictate as the right to exercise presidential powers does not emanate from the conducting of such an inauguration ceremony. It is, also, a matter of scholarly as to what instruments of state power are supposed to be handed over to the new president by his predecessor during the swearing-in ceremony.

The foregoing analysis of political transition has particularly restricted itself to political transitions following the ordinary expiry of presidential term of office and the election of a new president. However, equally critical is the issue of transition upon the premature termination of the incumbent president’s term of office, for instance through his death or resignation. The constitution is relatively alive to this issue. It provides that upon the president passing away or tendering his resignation to parliament before the expiry of his scheduled term of office, the Vice-President, or if he later declines a minister appointed by the cabinet shall exercise the presidential functions for a period of ninety days after which elections shall be held. The “stop-gap” president is constitutionally restricted in the extent to which he may exercise his presidential powers. For instance, under section 6(3)(b) he cannot dissolve parliament. This create some tricky situation in that parliament would then be allowed to run its full term with parliamentary elections being due within ninety bays after automatic dissolution of parliament.[25]However, the presidential elections to fill the vacancy in the Office of President would have to be undertaken within ninety days after the death or receipt of letter of resignation. It must then be borne in mind that upon the aforementioned automatic dissolution of parliament, a presidential election would have to be undertaken by virtue of section 5(3) of the consitution. Issue then would be whether the person so elected after the resignation or death of his predecessor would be considered to have run one full term irrespective of the duration spent in office. A serious constitutional difficulty might thus arise where the incumbent “stop-gap” president insists on serving his full, five-year term parallel to the parliamentary term.

As my analysis thus has shown, Kenya has no clear provisions with respect to a smooth transition. Thus,it suffices to say that as President Kibaki’s draws to its Lego-constitutional completion, there is conceivably little that has been done legally in preparing the groundwork for the transition to a new regime. It cannot be gainsaid then the importance of enacting transition-related law to act as a guide path and stabilizer before the challengers take advantage of these changes and create transitional instability. In this respect, various recommendations are made herein.

It is uncontested presently to assert that, “…there is now broadening support for the view that ….a regime must attain power through periodic and fair elections and not through military takeovers for it to be considered democratic and legitimately fit to claim stakes in any political dispensation.”Thus, the aspect of the conduct of elections should be well catered for in our laws to fill the various lacunas therein. Idealy, a properly managed constitutional handover and succession entails the gradual introduction of the likely presidential winners on major issues of primary national importance, such as national security, finance etc. beforehand possibly before the elections as is the case in the United States of America(USA).However, the way it is presently in Kenya, such an ideal scenario may be unattainable in Kenya given the diversity of the political parties fielding presidential candidates individually with no clear frontrunners. For instance where elections to be held today, it would be extremely difficulty to pinpoint who exactly is the frontrunner. For instance, would it be Uhuru Kenyatta or William Ruto in KANU, Kalonzo Musyoka or Raila Odinga in LDP or even Kibaki or Saitoti in NARC? Also, Kenyan politics are unpredictable and a frontrunner may emerge without prior notice a case in point being Uhuru Kenyatta’s meteoric rise from a mere local authority chairman to become the KANU’s presidential candidate in 2002,all within a matter of a year. It has been argued, “the current abundance of political parties tends to confuse the voter.”[26]Thus, legislation ought to be made to limit the number of political parties liable to produce presidential candidates and as well provide for qualifications for prospective presidential candidates in line with societal changes. Legislation is also in order as to the procedures to be followed in the event of there emerging no clear winner during the run-off elections. This is because the Kenyan Constitution under section 5(4) only provides for the run-off elections but does not envisage the event of no winner emerging creating a possibility of a major crisis.

It has been recommended[27] that in the event that Kenya is to have to undergo the actual transition from the present Constitution to a new one in the future, an independent body should be established and be tasked with managing the transition. It is my considered view that the same should be directed at the presidential transition come 2007 and other periods of transition thereon. Such a body, as was proposed by Kibe Mungai, can take the form of a transitional Government of National Unity headed by the incumbent president or the speaker or the Chief Justice with a certain number of Ministers at least 25% of whom should be elected by ¾ majority vote of total members of Parliament. Various designated interest groups such as religious organisations, the civil society, the Law Society of Kenya (LSK) and other interest groups as may be prescribed by parliament could nominate the other 75%. However, in appointments of such persons, regard must be had to regional balancing, gender parity and professional expertise. The foregoing body would be tasked with clearly defined powers of deliberating and deciding on matters of particular importance to the transition. Such would include making the logistical and institutional preparations for the handing over ceremony to ensure its properly co-ordinated. Its decisions would have to be decided on a majority basis on matters of procedure and substance to avoid abuse of power during this critical period.

As Mamadou[28] has observed during the transitional period, “..confrontations seem to focus on….the advantages to be given to interested parties and the set-up and redistribution of public resources” The issue of the disposal of public property is a critical one which has been open to abuse for long now because as Nwabueze has observed, “..the real enemy…is not power itself but insufficient restraint upon power”[29]. A provision should be made in the Kenyan laws that no state or national resource be dispensed with during the transitional period. The same should apply to the entry into contracts by the outgoing president or his appointees during the holding-over period such that except with relation to contracts on services that the state cannot do without, no contracts should be entered on behalf of the state at this period in time. It is also of critical that except for those posts, which cannot do without a person in place to so run them, no appointments should be made to senior government offices by the outgoing president so as to avoid abuse of this presidential executive power at the transitional period. However, allowance can be legally made to have the outgoing president name replacements where the incumbent office holders pass away or become permanently incapacitated to carry their official duties. However, such appointments should be tabled at the initial sittings of the incoming parliament for ratification or otherwise.

It also essential that there should be stipulated the actual date of swearing in which should also be the date when the holding over period for the “stop-gap” president or the outgoing president. This would be in line with the practice in the U.S where there are fixed presidential terms. Under the 20th Amendment to the US Constitution, it is provided that both the Presidential and vice-presidential terms of office, both of which are constitutional offices ought to always come to an end on 20th January this is even though the presidential elections are ordinarily held in November. In England, also it is constitutionally provided that upon the ruling party losing an election, the incumbent Prime Minister immediately ceases to exercise all the powers of that office and begins immediate preparations of vacating his office. A good model which can be adopted are the provisions which were made in the infamous Bomas Draft Constitution of Kenya which set specific dates for the swearing in of the president-elect into office. This clarity in legislation would guard against the incumbent president failing or refusing to hand-over to the president elect. Provision should also be constitutionally made on what instruments of power the outgoing president should handover to the president elect during the inauguration ceremony.

Lastly, in the event that the 2007 transition is conducted without the Government of National Unity, there should be established certain checks on the exercise of presidential power during the transitional period especially before the president-elect has yet to assume full presidential powers. It should be borne in mind the assertion by Montesquieu, thus, “Constant experience shows us that every man vested withy powers is liable to abuse it and to carry his authority as far as it will prevent this abuse it is necessary from the very nature of things that one power should be a check on another.” Note that at this time, parliament, the relatively effective check on the executive arm of the state, has already been dissolved and it is only the judiciary which is still in operation, the latter being a passive institution.”Also.the incoming legislature will only have to subsequently deal with matters “fait accompli”, that is already executed by the executive, such as for instance ratifying appointments made when it was dissolved. This calls also for the civil society and professional groups like LSK to remain alert and keep on their toes to check any such abuses. For as Alexis Tocqueville asserted, “ is not only laws that determine the destiny of peoples, no, it is not the mechanism of the laws that cause the great events of the world: what does decide events, gentlemen,is the essential spirit of Government: keep your laws, if you like, though I think you would be making a great mistake in keeping them, even keep the same men if you want to …but for God’s sake change the spirit of government, for the spirit ,I repeat, is leading you to the abyss”.[30] This change an only be achieved through constructive criticism and activism by Kenyans of all walks of life. 
In this paper, I have endeavoured to show the various weaknesses of the legal and institutional mechanism with respect to political transition. I have also made various recommendations on the way forward in this arena of Constitutional law which if implemented together with others made by various Kenyan personalities of varied repute should place Kenya in a much more secure condition than it is now. It would be very regrettable if this country, having produced such globally-recognised constitutional lawyers and scholars like Prof.Yash Phal Ghai and Prof. Okoth Ogendo to name but a few, would end up experiencing civil strife of the Somalian nature out of political transition disagreements. The time is ripe for the proper legal way to be charted on this aspect as the 1992 Helsinki Summit Declaration asserted, “There is still much to be done in building democratic and pluralist democracies where diversity is fully protected and respected in practice.”[31]

[1] Kibe Mungai, “The Constitutional Amendments needed to facilitate the comprehensive review of the Constitution.” Paper presented at the Law Society of Kenya (LSK) Workshop, Utalii Hotel, Nairobi, 8th-9th October 1999.
[2]See for instance: Wanza Kioko, “ Transitional justice in Kenya: What institutional framework”. LL.M Dissertation (2001). And Smokin Wanjala, “Elections and the Political Transition in Kenya”. 1999.
[3] D. Mamadou. “Political Liberalization or Democratic transition”, 1998 at page 12.
[4] Vincent B. Khapoya, “The Politics of Succession in Africa: Kenya after Kenyatta’s death.” Africa Today Vol. 26,1979.
[5] 1972;Quoted by Kibe Mungai (supra) at page 23
[6] Mamadou supra no. 3
[7] A.M.A Ng’eno, “Kenya: The Issue of Succession with Particular Reference to the 1978 and 1979 Presidential Elections.”LL.B Dissertation, U.O.N, 1980.
[8] Kibe Mungai supra 1
[9] The Constitution of Kenya Amendment Act No.28 of 1964.
[10] Y.P GHAI “The rule of Law, Legitimacy and Governace.”Page 186-187.
[11] The constitution of Kenya Amendment Act no. 2 of 1968
[12] Ng’eno A.M, “The issue of succession with particular reference to the 1978 and 1979 Presidential elections.”U.O.N LL.B Dissertation, 1980.
[13] This was a flagrant misconstruction of the constitution as it was not a triable offence for citizens to propose changes to the Constitution.
[14] Colin Leys, “Underdevelopment in Kenya: The political economy of Neo-colonialism.” London (Heinmann, 1975)
[15] Supra no.11
[16] Vojin Dimitrejic, “Political Pluralism in the aftermath of the Eastern Europe Upheavals,” page 11
[17] Christian Tomucht, “Democratic Pluralism: The Right To political Opposition.”Martinus Niljhoff Publishers (International Studies In Human Rights).
[18] He later decamped back to KANU just before the General elections.
[19] Hermet and Rouquie, “Elections Without a Choice.”
[20] Kenya gazette Legal Notice No. 79 of 1998.
[21] Kenya gazette Legal Notice No.7 of 1998
[22] The president was also sworn in as one of the Members of Parliament (MPs): he being the then M.P for Baringo Central.
[23] Section 9(3) of the Constitution of Kenya.
[24] Njuguna N. Njau, “The law on Political Transition in Kenya,” University of Nairobi LL.B Dissertation, 2003.
[25] Section 59(4) of the constitution of Kenya
[26] Supra No.15 at page 11
[27] See Kibe Mungai Supra No. 1
[28] Supra no.3
[29] B.O Nwabueze, “Presidentialism in Commonwealth Africa.”St.Martins Press, New York, 1974,Page 435.
[30] Quoted in Wachira Maina, “The Choice whether or Not To Sink into chaos is Ours.”The Nairobi law Monthly No.25 of September 1990 at page 16.
[31] Helsinki Summit Declaration of July 10th 1992 paragraph 12.

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