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September 25, 2018

Making a scarecrow of the law: The futility of changing electoral laws

NASA MPs after they walked out of parliament chambers September 28,2017 protesting the passing of the publication of the Bill on amendments to Elections Laws to be reduced from 14 days to one day.Photo/HEZRON NJOROGE
NASA MPs after they walked out of parliament chambers September 28,2017 protesting the passing of the publication of the Bill on amendments to Elections Laws to be reduced from 14 days to one day.Photo/HEZRON NJOROGE

William Shakespeare in one of his plays wrote, “Angelo, we must not make a scarecrow of the law; Setting it up to fear the birds of prey; And let it keep one shape, till custom make it; their perch and not their terror.”

When laws are made, it is generally a matter of time then it ceases to scare anyone. Kenya has some of the best statutes under the Sun, they first scared us when they were signed into law, then, over time, they take the shape of the proverbial scarecrow but soon become a perch for every evil crow. We have already bastardised our Constitution, making it ungainly scarecrow, dumb and derogated. It has become the perch of every evil bird, landing on it after taking their fill on the vegetables below, and they are leaving their droppings all over it. Look at Chapter Six, for instance, and see if it scares anyone these days.

Our problem is implementing what is already in our books, which becomes even more difficult when you introduce new laws. In short, we have so many good laws in this country that we scarcely need any new ones to make this election work.



The message Jubilee is sending us is that it is fearing the repeat election will not go their way as the law currently stands, and, so, they are making yet further changes hoping to ensure things don’t unravel as they did on September 1 at the Supreme Court.

Granted, the learned judges found that the election was not conducted in strict adherence to the law, and in this I agree with them. I also agree with NASA opposing the electoral changes — but not for the reasons they are advancing.

My reasons are that Jubilee (and to some extent NASA) are poor students of history, which is why they are always doomed to repeat it. Our electoral laws have been consistently changed in the last century (yes 1917-2017 ). Nearly every electoral cycle since 1920 has come with new laws, meaning that we are yet to get a perfect fit for our unique form of democracy. As things stand, we are severely risking over-legislating our elections.



The journey to elections actually began on February 12, 1917, when the Legislative Council sat and created a Special Committee on Elective Representation. This year, therefore, marks exactly one century from the time we created the first electoral laws. That Committee was very much like the mono-partisan Joint Select Committee on Electoral Laws led by William Cheptumo and Fatuma Dullo. This was a mono-racial Committee meant to benefit the Colonial regime with no participation by the Africans or even the Asians and Arabs. The Special Committee in 1917 had only five issues to deal with — inquire into and report on the legislative steps to be taken to provide for the election by the public of the European non-official members of the Legislative Council, determine the qualifications of electors and determine the qualifications of the candidates. It was also mandated to divide the protectorate into electoral areas and, finally, look into representation of ‘the interests of the Asians, Arabs and native communities.’

The result of this Committee’s work was the first election in 1920, which, although it was mono-racial, was multi-gender and that in itself was progressive. However, in 1924 electoral laws had to be changed to provide for the election of Asians and Arabs. In fact, there was a consistent review of electoral laws for the next 30 years until colonial secretary Oliver Lyttelton again made new polls changes in the Constitution named after him in 1954. This allowed for one African to be elected to the Legislative Council, two Asians and three Europeans. These still did not solve our issues either.



One of the direct results of the Mau Mau War was the concession to extend the vote to the Africans. In July 1956, Governor Sir Evelyn Baring appointed Chief Secretary Sir Walter Coutts to chair a Commission of Enquiry on the possibility of having African elected representatives. The Coutts Commission made recommendations that the Legislative Council (Amendment) Ordinance of 1954 (Cap. 38 Laws of Kenya), be amended to allow for the direct election of Africans to the Legislative Council.

Coutts organised a qualitative method, where African voters who met some minimum requirements would be allowed to vote. These included fluency in English, long employment, property ownership, education (literacy and numeracy), residential requirements —having a home and a known address and be aged 21 years and above. The administration made it clear that former Mau Mau would be excluded from the elections, with the exception of those who had been forced to take the oath of allegiance. Many Africans went through the vetting exercise between the end of 1956 to early 1957 to be allowed to take part in the March 1957 polls. As expected, the majority of Africans failed to qualify to vote. For those who qualified, the election took place between March 22-24, 1957 and produced eight African representatives in the Legislative Council.



The following year in 1958, Alex Lennox-Boyd came up with even more electoral laws affecting the composition of the Legislative Council. Perhaps of greater interest here is that the laws had to change in line with the specific demands of various people, more particularly Tom Mboya, who was the major-domo for the African elected members. The Lennox-Boyd Constitution went into effect in Kenya on April 5, 1958 and provided for increased African elective seats in the Legislative Council. African seats were increased from eight to 14, the same as the number of European elected members, but this was disproportionate to the racial numbers of the day. Lennox-Boyd further made a provision for 12 ‘special seats’, four — each — for the African, Asian, and European constituencies, to be elected by the Legislative Council itself. However, just as soon as the announcement was made, the African MLCs led by Mboya rejected the new provisions. They formed the African Elected Members Organisation and in November 1958 staged a dramatic walkout on Governor Baring during the opening of the new session of the Legislative Council. In January 1959, the four elected Asian members joined the AEMO in their boycott. This pressure led the Colonial Office to rethink its strategy and promise a new round of constitutional conferences to be held in 1960. It was only after firm assurances on this matter that they resumed their seats in the Legislative Council.


The new electoral laws were again made by the McLeod Constitution, which was possibly the first direct result of the “Wind of Change” speech made by Prime Minister Harold McMillan on February 3, 1960 at the South African Parliament. Nine days after that speech, on February 12, the McLeod Constitution was proposed for Kenya. The Legislative Council would be reduced from 72 to 65 members made of 33 “Open seats” to be filled on a fairly wide franchise, 20 seats to be reserved for minorities ( 10 European, eight Asian, two Arabs), and 12 seats to be “specially elected” and reserved for four Europeans, four Asians, and four Africans. The election of January 1961 was to be held under the McLeod Constitution, which was Kenya’s third round of electoral changes in twice as many years.

The election of 1961 was going to lead to a significant House majority for the Africans. However, a series of meetings to craft a new Constitution held in Lancaster House in London, would lead to even more electoral changes being put in place. The Lancaster Conferences abolished the Legislative Council (founded in 1907 ) replacing it with the National Assembly that would have 117 constituency members, 12 specially elected members and the Attorney General as an ex-officio member. The Senate would have 41 members and all voters had to be at least 21 years of age. The election of May 1963 to usher in Independence was held under this Constitution. However, in the years that followed, Jomo Kenyatta and Kanu would cannibalise the electoral provisions of the Lancaster House Constitution and even dismantle the opposition and the Senate to create a unitary Parliament.




The Constitution of Kenya (Amendment) Act No 28 of 1964 replaced the Prime Minister with ‘President’, who would be elected by the National Assembly constituted as an Electoral College. This robbed the people the chance of electing the President of their choice under universal suffrage. However, it was Constitution (Amendment) Act No 17 of 1966 that created what would be known as the Turn Coat Rule, in which an MP had to seek reelection at the end of the session if he defects.

This was designed to frustrate the formation of a House opposition and, more specifically, to tame Jaramogi Oginga Odinga and his new party, KPU. It did so effectively, reducing Odinga’s House following to just nine members. More election-related laws followed and it would be the Constitution (Amendment) Act No. 16 of 1968 that the election of the President would now be done under universal suffrage. Parties would nominate a Presidential candidate and independent candidates were barred from contesting. It would not be until 2017 that we would see independent candidates again, having disappeared for a half-century.



In the 1974 General Election, Jomo Kenyatta’s bosom friend and co-detainee Paul Ngei would commit grave electoral offences that would have his ‘election’ overturned. Ngei and his supporters had intimidated his sole opponent Raphael Kithika Mbondo by openly threatening his life and even parading a mock coffin round the constituency. Chief Justice James Wicks not only nullified Ngei’s election but also barred him from contesting the Kangundo seat for five years. The Amendment Act No. 1 of 1975 extended presidential powers to include overruling disqualifications arising out of an Electoral Court decision. This rule was a blatant abuse of Executive powers and embedded electoral impunity, which caused serious problems in subsequent elections.



It was not until 1979 when yet another electoral law amendment was made, requiring proficiency in Kiswahili as a prerequisite to seeking parliamentary office. However, the Constitution (Amendment) Act No. 7 of 1982 famously introduced Section 2A into the Constitution and had the most far-reaching electoral changes. Kanu became the only legal party. It also repealed the Turn Coat Rule of 1966 and deleted the definition of a political party. It also left the nomination and electoral process for the National Assembly to Kanu, which blatantly abused the rule in the next two General Elections ( 1983 and 1988 ). This specific rule was part reason why Raila Odinga and his friends attempted to overthrow the Kanu regime through a military coup in August 1982. When the coup failed, they moved their action to the people through covert activities to push for change. Both local and international pressure combined with the fall of Communism in the geographical North saw Kenya forced to repeal the odious 2A. And so it would be that Act No. 12 of 1991 was passed repealing section 2A re-introducing pluralism. The same law redefined a political party and re-introduced the Turn Coat Rule. However, changes in electoral laws did not go far enough to ensure ‘free and fair’ elections took place.



In anticipation of the multi-party elections of 1992, President Daniel Moi appointed former Appeal Court Judge Zacchaeus Chesoni as the chairman of the newly formed Electoral Commission of Kenya. The formation of the ECK removed the management ofelections from the Speaker of the National Assembly, who had been given that role since 1963. It also limited the involvement of the provincial administration (the district commissioner) as returning officer of elections, something they had done since 1920. However, due to a very short institutional memory, the ECK did not anticipate the enormous logistical problems or probably took advantage of them to ensure Moi retained his seat.

Chesoni had only been dismissed from the Court of Appeal on the recommendation of the Judicial Service Commission, when he was found unable to pay his creditors. An inveterate gambler, the America-educated judge owed a state bank colossal amounts. The Commonwealth Observer Mission led by Justice P Telford Georges noted Chesoni’s unsuitability for office as one of the major irregularities. Chesoni left in 1997 and was replaced by his deputy Samuel Kivuitu. The ECK would live a tumultuous life until it was disbanded in November 2008 after only 16 years. They held four elections and a referendum before being replaced by the IEBC [initially as the Interim Independent Electoral Commission of Kenya ].

The IEBC would be celebrating nine years in November but there is little cheer in that embattled institution. Having seen an entire team of commissioners disbanded through opposition-led pressure, there’s yet further pressure on it, depending on the outcome of the October 26 presidential rerun.



Seeing that elections have always elicited such heavy emotions over the years, pursuing further electoral changes could only be counterproductive, not only for Jubilee but for the whole nation. On this one they got it all wrong. While the proposed laws look quite well-intentioned, there is a way in which the timing just messes up things. As they are confident they won the annulled election, the same legal regime would still deliver the victory, otherwise they are just making another scarecrow.

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