CHAPTER 2

CONSTITUTIONAL FOUNDING OF THE KENYAN AND AFRICAN STATE

This Draft Chapter may be cited as: Ben Sihanya (forthcoming 2019) “Constitutional founding
of the Kenyan and African state,” in Ben Sihanya (2019) Constitutional Democracy, Regulatory
and Administrative Law in Kenya and Africa Vol. 1: Presidency, Premier, Legislature, Judiciary,
Commissions, Devolution, Bureaucracy and Administrative Justice in Kenya, Sihanya Mentoring
& Innovative Lawyering, Nairobi & Siaya.

2.1 Constitutional Founding of the Kenyan and African State

This Chapter 2 argues that the constitutional founding of the Kenyan and African State, and
incipient statehood or nationhood, was based on three variables. First, constitutional or political
negotiation. Second, militancy, including violence. And third, an appropriate combination of
constitutional negotiation and militancy or violence.

2.2 Nomenclature and conceptualization of the Kenyan and African state

“Kenya,” got that name in 1920 when it became a British colony following complex social,
economic, political, social, technological, military, and juridical adventure, misadventure, and
related processes in statecraft and nation building.

The Kenyan and African state is about at least three key variables or phenomena. First, it is
primarily about the people. What was the composition or diversity of the population in 1895,
1920 (colony and protectorate), 1963(independence)? What was the population size on these
dates, and in 1948, 1962? …. Second, it is also about territory, borders or boundaries and
constitutionally democratic1 and effective government.2 And third, capacity to transit in
international relations.3 The Constitution is key in constituting Kenya historically in terms of
law, rules, principles, policies and norms.

Who are the people within Kenyan territory or boundary? Kenyans beyond territory?. (Who are
Kenyans, Kenyan citizens historically? Who can pass on citizenship?

2.2.1 How did Kenya become the East Africa Protectorate and colony?
1
“constitutionally democratic” is part of the Sihanya reconceptualisation of the constitution, state and government,
partly based on the Constitution 2010, UN Charter, UDHR, as well as UN and AU instruments and popular
understanding….
2
See Chapter 1 of Ben Sihanya (2019) Constitutional Democracy, Regulatory and Administrative Law in Kenya and
Africa Vol. 1: Presidency, Premier, Legislature, Judiciary, Commissions, Devolution, Bureaucracy and
Administrative Justice in Kenya, Sihanya Mentoring & Innovative Lawyering, Nairobi & Siaya (CODRALKA 1) on
the classical fomal or (neo) liberal classification, Ghaian typology, and Sihanyan reconceptualisation of the
constate, state, government…See Articles 51, 2(5), (6) ….and 4(1) “Kenya is a republic.”
3
This includes the exercise of external sovereignty that encompasses facilitating and protecting citizens abroad;
when they engage in international diplomacy…..cooperation, foreign policy…….
1
“Kenya” was initially British East African Protectorate from June 15, 1895 then Kenya Colony
and Protectorate from 1920.4 UK constitutional law, English regulatory and administrative law,
and English understanding of the law nations (or international law) were applied in construction
of the protectorate and colony including the East African Order-in-Council 1897….5

A colony is a country or an area that is governed by people from another more powerful
country.6 It is where a country is under full or partial political control of a foreign power and is
occupied by settlers of that power. On the other hand, a protectorate is a dependent territory that
has been granted local autonomy while retaining the protection of a greater sovereign state. 7
What of a dominion? A vassal state? A suzerain state?8

The Kenyan Colony comprised the inland territory. 9 The protectorate comprised the Ten-Mile
Coastal Strip which was under the control of the Sultan of Zanzibar following treaties signed in
1886, 1895 and 1920. After 1920, “Protectorate” only referred to the 16 km or 10 mile Coastal
Strip.What was “Kenyan” map as at 1895? 1902? 1920? 1926? 1963?10

In 1895, the Imperial British East Africa Company (IBEACo) which was a commercial
association founded to develop African trade in the areas controlled by the British colonial
power, surrendered its management of the Sultan’s dominions. 11 This paved way for the British
Government to take over. Britain declared (what would later become Kenya) an East African
Protectorate on 15/6/1895 with its headquarters in Mombasa. When were the headquarters
transferred to Machakos? Nairobi (or Enkare Nailobi)? In 1920, the East African Protectorate
was renamed the Kenya Colony and Protectorate.

4
See the legal instruments including EA-Order-in-Council 1897 which evolved into sections of the Judicature Act,
1967, Cap 8 (on sources of constitutional law in Kenya; Independence Constitution...what international law rules
governed colony and protectorate status....Nigeria given its name by Lord Frederick Lugard’s girlfriend. See Chinua
Achebe (2012) There was a Country: A Personal History of Biafra, Penguin group, London, England; African
Today, Nigeria at 100: a nation searching for its soul, vol 20 No 04/05.
5
Yash P. Ghai & J.P.W.B. McAuslan (1970, 2001) Public Law and Political Change in Kenya, OUP, Nairobi;
Robert Seidman (..) The reception of the common law in English speaking Africa revisited ,,,,,progressive aspects of
the common law was not received in the colonies; and the best lawyers were retained in England….See also Ghai,
“The rule of law, legitimacy, and governance…”….
6
A.S. Hornsby ((2010) Oxford Advanced Learner’s Dictionary, Oxford University Presss.
7
See Douglas Kiereini (2018) “How Kenya was both a British protectorate and colony at the same time,” Business
Daily, Nairobi, 16/8/2018, at https://www.businessdailyafrica.com/lifestyle/society/Kenya-was-both-a-British-
protectorate-and-colony/3405664-4715590-hi6fw6/index.html (accessed 27/6/2019).
8
One definition is that a suzerain state is one having control over another state that is internally autonomous.
9
Cf The conquest state; the protectorate; the colony; dominion….constitutional development; Kenya under
colonialism: Constitutional contests on protectorate, colony… Rights and freedoms: life, liberty, land, labour, tax…
10
See annex….
11
Douglas Kiereini, ibid.
2
Taxes were imposed on the African population particularly the hut tax and poll tax. 12 Colonial
land alienation,13 labour regulation,14 and trade regulation15 were introduced.

Colonialism also delineated international (or territorial) and internal borders 16 among African
peoples.

2.3 Peopling Pre-colonial Kenya and Africaon the eve of Anglo-French and German
colonialism

Before British (especially English), French, German and Portuguese colonization, the Kenyan
and African land mass consisted of largely acephalous or decentralized groups. They were
heterogeneous internally and externally.17 Only a few groups like the Wanga of Western Kenya
had fairly centralized administration or governments in the form of chiefs.18

The British were largely centralized but applied the “dual mandate” or “indirect rule” due to
pragmatism and as a condescending attitude to Kenyans and Africans. The British did at least
three things on centralisation that they were familiar with. First, the British exaggerated
centralization where it was limited as among the Wanga. Second, they used the Wanga, Baganda
and other tribes, clusters or clans to conquer or to lord it over other tribes like Luo and Acholi,
respectively.19 Third, the British constructed chiefdoms (or ruothdoms)20 and Kingdoms where
none existed, as among the Luo and Igbo of Nigeria.21

12
See Y.P. Ghai & J.P.W.B. McAuslan (1970, 2001) Public Law and Political Change in Kenya, OUP, Nairobi at
50-52. Cf definition or conceptualization of state: effective government and capacity in transnational transactions ;
See also Ministry of East African Community and Regional Development, “History of Kenya” at
http://meac.go.ke/history-of-kenya/# (accessed 27/6/2019).
13
…..
14
…..
15
….
16
The internal or intra-territorial borders established exclusive districts or zones and dropped or reduced migration
among tribes, clusters, or clans…..
17
See John Lonsdale, “The conquest state…” in W.R. Ochieng’ (ed) A Modern History of Kenya; Lonsdale, ibid, in
E.S. Atieno Odhiambo & John Lonsdale (eds) (2003) Mau Mau and Nationalism: Authority, Arms, and Narration,
James Currey, Oxford, EAEP, Nairobi, Ohio UP, Athens.
18
Cf. British invention of (paramount) chiefs in Kenya, and Uganda Nigeria, Ghana, and other West African States
were legally different as they had Kingdoms like Mali, Songhai, Buganda, Bunyoro-Kitara, Toro...
19
B.A. Ogot A History of the Luo-speaking Peoples of Eastern Africa….
20
See W.R Ochieng (…) “The transformation of a Bantu settelemnt into a Luo ruothdom (chiefdom): A case study
of ……..;” W.R Ochieng (….) History of the Kadimo Chiefdom of Yimbo in Western Kenya,”…
21
See B.A. Ogot E.S. Atieno Odhiambo & Toyin Falola (eds),(2002) The Challenges of History and Leadership in
Africa: the Essays of Bethwell Alan Ogot, Africa World Press, Trenton, New Jersey & Asmara; Chinua Achebe
(2012) There was Country: A Personal History of Biafra, Penguin Books, New York,.ibid.
3
Remarkably, the following African states consisted of cephalous and acephalous communities as
indicated: Nigeria,22 Ghana,23 Uganda,24 Tanzania, DRC,25 Cameroon,26 Zimbabwe, and South
Africa.27

All Kenyan and African communities had forms of economic, political, technological and socio-
cultural organization that were closely related to the ecology, 28 the climate and the organization
of their neighbours. Thus the following Kenyan tribes largely practised the economic activities
indicated after their names: Kikuyu (farmers); Kamba (long distance traders); Luhya (farmers);
Luo (agriculture, fisher folk); Kalenjin (pastoralists), Meru (farmers); Kisii (farmers),
MijiKenda and Coastals generally (traders…), and Maasai, Turkana , Samburu and Somali
(pastoralists).

The various forms of leadership, administration, management and governance were organized
around age sets, special skills, talents, or gifts, and related to the relevant economic, political,
social and cultural activities.29 For instance, there were economic, political and religious or
spiritual leaders.30

In about 1890, Britain faced the question whether it could exercise sovereign authority, apply,
annex and impose tax in a protectorate. Thus the extant imperial law suggested that Britain
could only have such jurisdiction in colonies. But what were the differences in African and
international law among protectorate, dominion and colony? 31 There had been similar situations
in Africa before Europe invaded.

22
to cite Prof Kenneth Dike....The Igbo Nation in West Africa is regarded to be an acephalous or egalitarian society.
23
Cite, among others, Asante, Akan; cf....Prof Adu Boahen, Topics in West African History ...etc….
24
Cf Buganda Kingdom…
25
The Kingdom of Kongo, Kingdom of Ndongo...
26
The Kingdom of Bamum, Hausa, Fula, Baka....
27
Zulu, Xhosa, Sotho.....
28
The ecology includes and included the natural resource base such as land, water, flora, and fauna ..cf Charles O.
Okidi (2008) “Concept, function and structure of environmental law,” in C.O. Okidi, P. Kameri-Mbote, Migai
Akech (eds) Environmental Governance in Kenya: Implementing the Framework Law East African Educational
Publishers Ltd, Nairobi; Wilfred Nangena (2008) “Economic issues for environmental and resource management in
Kenya,” in C.O. Okidi, et al (eds) Environmental Governance in Kenya: Implementing the Framework Law East
African Educational Publishers Ltd, Nairobi; H.W.O. Okoth-Ogendo (2008) “Managing the agrarian sector for
environmental sustainability,” C.O. Okidi, et al (eds.) Environmental Governance in Kenya: Implementing the
Framework Law East African Educational Publishers Ltd, Nairobi, 222-34
29
Cf village elders including jodong gweng (Luo), Kiama (Kikuyu), Njuri Ncheke (Meru); specialisties including
spiritual and political or administrative leadership like Orkoiyot Nandi….; youth groups such as Maasai morans,
women groups,…..
30
The religious or spiritual leaders included medicine men and magicians, diviners, seers, etc. eg Orkoiyot of the
Nandi…..see David Anderson & D. Johnson (eds) (….) Revealing Prophets: Prophecy in Eastern African
History…..; John S. Mbiti An Introduction to African Religion…..; John S. Mbiti (….) African Religion and
Philosophy…….
31
Okoth Ogendo (1991) Tenants of the Crown, African Centre for Technology Studies, ACTS Press; Okoth Ogendo
(1979) “The imposition of property law in Kenya,” The Imposition of Law, Academic Press, ibid, 147.
4
Soveregnty is related to subjecting the people to English law; annexing or alienating their land;
and imposing tax on the people. 32

However, this position was revised to the effect that the monarch could exercise sovereignty
whether in a colony, dominion or protectorate.33

2.4 Imposition of Colonial Law and Adminsitration in Kenya and Africa34

Three issues on the imposition of colonial law in Kenya and Africa. First, what factors weakened
Kenya and Africa and (unilaterally) predisposed them for colonization? There were natural
disasters, civil wars, clan or succession disputes. For instance, the the Maasai “Lords of East
Africa,” were weakened from the last quarter of the 19 th century by droughts and disease which
decimated their cattle – their socio-economic and cultural infrastructure. There were also inter
clan wars among the Purko and other clans; and the succession disputes between Lenana and
Sendeyo, among others.35

Second, how was colonial law imposed? internalized and adopted? 36 Third, what were the
strengths and allure of the colonizing British, French and German civilisation or culture law,
education, religion, clothes…Education provided opportunity to read, write and tackle
arithmetics. It led to religious clerical vocational jobs. What did colonial Christianity teach? 37
Colonial Christianity taught submission to divide British and civil authorities. It taught ascetism
and capitalism; happy are those who are poor, you will inherit the Kingdom of God (the Bible
was selectivelywhiteman’s wisdom).38 Christianity as preached the missionaries had some
liberating aspects, for instance validation of …untouchables among the Igbo (Achebe…).39

The formal contact between Europe and Kenya in terms of administration began after the Berlin
Conference of 1884 that was convened by Bismack.40 This confirmed the quest for spheres of

32
Cf Chapters 2, 3, and Chapter 4 and …. debates on popular; state sovereignty; external and internal sovereignty.
The debate in ICC; in Munya case…By sovereignty here we mean, that right and power that a governing body in a
state or county has over its polity without influence by external powers. It is the right to self/internal government.
33
Okoth-Ogendo (1991) Tenants of the Crown: Evolution of Agrarian Law and Institutions in Kenya, ACTS Press,
African Centre for Technology Studies, Nairobi; Yash P. Ghai & J.P.W.B. McAuslan (1970) Public Law and
Political Change in Kenya, OUP, Nairobi (reprinted in 2001 with a preface).
34
[Details in 1st paras to be relocated]….
35
See ….in David M. Anderson & Douglas H. Johnson (eds) (…) Revealing Prophets: Religion in Eastern African
History….) Most western history books made the “arrogant claim” that they discovered. Discover? East African
tribes had lived near the lake and even named it Lake Sango or Lolwe.
36
See H.W.O Okoth Ogendo (1979) “The imposition of property law in Kenya,” in Harrel Bond (ed) The Imposition
of Law, Academic Press, New York, 147…….
37
ES Atieno Odhiambo (1974) “The movement of ideas: A case study of intellectual responses to colonialism
among the Liganua peasants,” 6 Hadith 165-85.
38
Cf Max Weber, The Protestant that Ethic and the Spirit (or Rise) of Capitalism….
39
Cf John S. Mbiti ….. Africans are and were “historically religious”……Religion was holistic integrated into had
no evangelizing…, nor reforms….
40

5
influence commonly referred to as the “Scramble for Africa.” 41 At first Britain used the IBEAC
or IBEA Co., a chartered company,42 as the main instrument for penetrating East Africa and
consolidating British power.43 This charter gave British subjects in the East African Protectorate
immunity from prosecution and further empowered the subjects to impose taxes including
custom duties, make treaties, and act as the administrators of justice as well as the effective
overall government of the colony.44

There were problems with IBEA Co., especially inefficiency in business 45 and incompetent
political administration.46

Until 1895 when the power of administration over the modern day Uganda was transferred to the
Foreign Office, IBEA Co still administered the Uganda Protectorate.47

2.5 Kenya Territory and External Borders

Article 5 of the Constitution states: “Kenya consists of the territory and territorial waters comprising
Kenya on the effective date, and any additional territory and territorial waters as defined by an Act of
Parliament.”

How was Kenya constituted territorially, in terms of its land mass, frontiers, and international borders and
boundaries generally? How have boundary disputes with Kenya’s neighbours helped constitute Kenya
territorially, normatively and demographically?

2.5.1 The Uganda and Kenya Railway: The Lunatic Express 1896-190148
Britain embarked on building the Uganda Railway from Mombasa in 1896 as a means of securing control
over the Suez Canal.49 through the device of controlling the source of the Nile (believed to be in

41
The British were interested in East and West Africa; Germans in South West Africa, French in West Africa., the
Portuguese in Angola and Mozambique. According to historian WR Ochieng, the imperial powers laid claim based
on an inaccurate map, and the land mass they were not sure about. The drew borders on an inaccurate map, using
pencils (?). That partly explains the location of some tribes in more than one territory, and the disproportionate
sharing of cross border resources like lakes, mountains, etc.
42
Chartered under....
43
Germany used German East Africa Company (GEACO).
44
Roland Oliver (March 1951) “Some Factors in the British Occupation of East Africa, 1884-1894,” 15 (1) Uganda
Journal 49–64; Charles Okidi “background to Kenya’s framework on environmental law....” Bethwell A. Ogot & R.
S. Herring & D. W. Cohen (1979) “The construction of dominance: the strategies of selected Luo groups in Uganda
and Kenya,” in A. l. Salim (ed) (1984) State Formation in Eastern Africa, Hein-mann, Nairobi, at 126-61. (Selected
papers from a Conference organised by the Department of History, University of Nairobi, held at Nakuru,
September 1979.
45
46
47
ibid.
48
Cf Standard Gauge Railway (SGR), Rift Valley Railways (RVR). SGR MGR debate and China debates 2013-
2019.i.e Ethiopia…..Dr David Ndii on costing, efficiency, value for money
49
Controlling the Suez Canal was crucial to British and Europeans
6
Uganda).50 The railway reached Port Florence (Kisumu) in Uganda Protectorate in 1901. The Kenya-
Uganda boader changed …..due to the exigencies of economic, …., political and administrative
exigencies.

2..5.2 The Kenya–Uganda Border

Administering the railway was expensive and inconvenient give that it was under two different
protectorates at a time of limited administrative cooperation and communication and when
British tax payers were keen that the railway pays itself.

In 1902, the border between the Uganda and East African protectorate disputes was moved
westwards to where it is today in order to place the railway under one administration.

This partly explains the Kenya-Uganda dispute between Kenyatta 1 (Kamaliza or K1) and Amin
in 1976. President Idi Amin had claimed that what was formerly known as the Western and
Nyanza provinces in their entirety and some parts of the Rift Valley all the way up to Naivasha
were initially Ugandan territory. And that the territory was transferred to Kenya in an agreement
signed by the British colonial secretary Herbert Asquith, for purposes of administration.51

The rift between Kenyatta and Amin was also fuelled by the Israelis incident in Entebbe. Israeli
nationals had been held hostage by Pakistan militia in Entebbe and Kenyatta (through Njonjo?)
had allowed the Israel army to overfly Kenya to and from Entebbe and also to Nairobi….

In the 2010s, Museveni made a claim to Migingo Island in Lake Victoria. 52 This issue remains
unresolved as at this writing (in October 2019).

2.6 The 16 km Coastal Strip of Kenya

The coastal land questions are all or partly associated with the awarding of sovereign rights over
the (ten mile) sixteen (16) kilometre strip at the Coast to the Sultan by the British and Germans
who were fighting for the control of East Africa. The Sultan’s subject held private property
50
Speke and Grant were “the first Europeans to see the source of the Nile” in 1856. That is related to the interests in
Uganda, and later East African Protectorate (Kenya). B. A Ogot & W.R Ochieng (eds) (1995, 1996) Decolonisation
and Independence in Kenya, 1940-93, James Currey, London, EAEP, Nairobi, & Ohio UP, Athens.
51

52
Response by Kenyatta II...Raila...According to Article 1 of the Montevideo Convention (1933) , the state as a
person of international law should possess the following qualifications: (a) a permanent population; (b) a defined
territory; (c) government; and (d) capacity to enter into relations with the other states. See Chapters 1, 3, 4 of Ben
Sihanya (forthcoming 2018) Constitutional Democracy in Kenya and Africa Vol. 2: Presidency, Bureaucracy and
Administrative Justice in Kenya (Revised Teaching Notes and Research Materials on Constitutional Law and
Comparative Constitutional Law by Ben Sihanya 2004-2018, Sihanya Mentoring and Innovative Lawyering; Ben
Sihanya (forthcoming 2019) “Typology of constitutions, states and governments in Kenya and Africa: Sovereignty,
constitutional democracy and revolutions in S. Africa, Nigeria, Egypt, USA, UK and Germany,” forthcoming as
chapter 3 and 4 in Ben Sihanya (forthcoming 2019) Constitutional Democracy, Regulatory and Adminsitrative Law
in Kenya and Africa Vol. 2: Presidency, Bureaucracy and Administrative Justice in Kenya (Revised Teaching Notes
and Research Materials on Constitutional Law and Comparative Constitutional Law by Ben Sihanya 2004-2018,
Sihanya Mentoring and Innovative Lawyering
7
rights over the land and secluded the indigenous communities especially those who were not
Muslims and were not his subjects.53

At independence in 1963, the 16km Coastal Strip was transferred to Kenyan sovereignity
through an agreement among the Sultan of Zanzibar (name), the British Queen Elizabeth II and
Jomo Kenyatta. Kenyatta promoted the infringement of the indigenous coastal people’s rights to
land by taking sides with the British Government and the Sultan and later allocating part of the
land to the his family, cronies and Kikuyu.

As recorded by Karuti Kanyinga:

“At the time of transition to independence, the British government entered into a pre-
independence agreement with the Kenyatta administration and the Sultan regarding control of
land in Mwambao. Kenyatta conceded to the Sultan’s demands for recognition of private land
rights on the Coast and promised to adjudicate and register such rights where they were not
adjudicated, notwithstanding the negated land rights of the indigenous groups. Both the
agreement and negotiations over independence concluded the process of creating the squatter
phenomenon: they transformed the Mijikenda into squatters or tenants of the Arabs and the
Swahili landowners.”54

Jomo Kenyatta complicated the already complex coastal land question. There are at least four
permutations or nuances to the coastal land question: Lamu and Mpeketoni, Taita Taveta, Kwale,
and the Mombasa and beach land or sea front generally.

First, Jomo Kenyatta facilitated the settlement of Mpeketoni (or Mpeketoni, give him or her the
Carton?) by the Kikuyu in the Kenyatta Settlement Scheme. Second, in Taita Taveta, Kenyatta
acquired large chunks of land that measured at least 30, 000 acres in 2013. 55 And in spite of
massive landlessness among the Taita where a large population live as squatters or spontaneous
settlers in their ancenstral land.

Third, in Mombasa and at seafront generally long serving coast Provincial Commissioner (PC)
Eliud Mahihu facilitated the allocation of land to the Kenyatta Family and Kikuyus. Indeed the
only “public” beaches are appropriately named Kenyatta Beach and Mama Ngina Drive. 56 Of
course some of the initial beneficiaries sold the beach plots. 57 Moi, Kibaki, and Kenyatta II

53
Who were the Sultans of Zanzibar from the mid 19th century to 1963? Cite……
54
Karuti Kanyinga (2000) “Politics and struggles for access to land: Grants from above and squatters in coastal
Kenya,” Institute for Development Studies, University of Nairobi, at
https://learning.uonbi.ac.ke/courses/GPR203_001/document/Property_Law_GPR216-September,_2014/Articles/
Karuti_squatters.pdf (accessed 14/10/19).
55
Ibid.
56
Ibid.
57
…See also The Andrew Mathai: (Parliamentray) Select Committee on the Coastal Strip…; John Kamau (2019)
“Mathai vs Maathai: Politics, business and eventual divorce, Sunday Nation September 22, 2019, at…….
8
followed the legacy of Jomo Kenyatta in allocating or retaining the Kikuyu tribal stronghold over
coastal land….58

2.7 Kenya Somalia- and Kenya Ethiopia Border 1926

The creation of the boundary between Kenya and Ethiopia was completed in 1903. In 1926, most of the
present North Eastern counties( formerly North Eastern Province (NEP)) were brought under Kenya. 59 It
was previously known as the Northern Frontier District (NFD). 60 This territory was carved out of the
Jubaland region of present-day southern Somalia during the colonial period. 61
There have been a series of disputes regarding the Kenya- Somalia Boarder since the pre-colonial era.
The issue was revisited in 2009 when the two Governments signed an MOU that recognized Kenya’s
claim under international law, but the MoU was later rejected by the Somalia Parliament. 62

The dispute intensified in August 2014 when Somalia sued Kenya at the International Court of Justice for
unlawful operations in her alleged maritime territory. The disputed water is a triangular patch created by
projecting the Kenya-Somali border eastwards. It measures about 100, 000 square kilometres. 63

In October 2015 Kenya challenged the jurisdiction of the ICJ to hear the case as well as its admissibility.
The ICJ then held the first hearing on September 19 to 20, 2016 of Kenya's petition. In February 2017 it
quashed Kenya's plea, affirming its jusrisdiction to hear the case. In December 2018, Kenya filed a
Counter-Memorial, a response against Somalia's claims. As at this writing in 2019, the disputes is still
pending before ICJ, with strained diplomatic relations between the two countries. 64 In later 2019, a group
of Kenyans went to court to have the government compelled not to participate in the case at ICJ. The
argue that the case may lead to alteration of Kenya’s territory without a referendum as required by the
Constitution. In their view, the matter should be solved amicably.65

58
59
The Kenya/Somali border war was derogatorily and inaccurately called “shifta” war in the 1960s. There has been
a boarder dispute between Kenya and Somalia.......Discuss the claims, the response.........This dispute has been
submitted to the International Court of Justice (ICJ). Cite Nation……how A-G’s office messed up case – early
October 2019…std weekend of 12/10/19. This is related to the practice in the A-G’s office and other Government
offices of only engaging external lawyers who were tribally and politically affiliated….Okiya Omtata Okoiti brought
a case on this……
60
61
https://idis.uonbi.ac.ke/sites/default/files/chss/idis/idis/AN%20ANALYSIS%20OF%20THE%20GARRE
%20AND%20MURULLE%20INTER-CLAN%20CONFLICTS%20IN%20MANDERA%20DISTRICT%20IN
%20KENYA.pdf
62
John Kamau (2019) “Colonial deal and oil factor in Kenya-Somali boarder row,” Sunday Review, 30/6/019, at 29;
Sam Kiplagat (2019) “Group wants Kenya to pull out of maritime case,” Sunday Review, 30/6/2019, at 29.
63
Japheth Ogila (2019) “Inside the Kenya-Somalia dispute over maritime territory,” The Standard Digital,
18/2/2019, at https://www.standardmedia.co.ke/article/2001313491/how-the-kenya-somalia-maritime-territorial-
disputes-started (accesed 2/7/2019). See annex...on the territory disputes between Kenya and her neighbours since
independence in 1963.
64
Cite Daily Nation, on how…officials in the A-G’s office caused this through greed, incompetence and
naivety…..and standard weekednd of 12 and 13 october 2019……
65
cf Sam Kiplagat (2019) “State urged to pull out of Somalia case,” Daily Nation, Nairobi, 18/10/19. See Somalia v.
Kenya ;
9
2.8 Kenya under colonialism
The main impact of colonial status was the loss of sovereignty by the Kenyan people and
territory.

What did it mean for Kenya to be colony in the period?, 1920-1963: economic, political social, cultural,
technological.....

2.8.1 Loss of Kenyan people’s sovereignty and self determination

The British now had responsibility for administration and for protecting all within the colony. This
included Africans and Arabs who were also subjects of the crown; British citizens; other settlers as well
as Indians and other immigrants. 66 In transnational or international law they had the responsibility of
representing Kenya’s interests, for instance, through defence or the borders, trade, sporting activities, and
treaties. But the British focused on claiming and enjoying liberties, rights and privilege…..

The colonial administration in Kenya faced discontent due to threats to life, liberty, land and related
property interests.67

2.8.2 Life related human rights in colonial Kenya

Kenyans lost lives and limbs in colonial Kenya even though the applicable English, European universal
and even colonial law protected the right to life. Kenyans were killed on a whim by the “masters.”
Numerous Kenyans died in British wars including expeditions, World War I, World War II, in the Mau
Mau rebellion

2.8.3 Liberty and movement in colonial Kenya

Personal liberty was severally constrained in colonial Kenya.
Freedom of conscience, opinion, freedom of expression, freedom of association, freedom of assembly,
freedom of movement….

Some of the draconian regulations governedkipande; passes, labour and even createdreserves for
Africans. There were exclusive European or “White Highlands,” Asian quotas (Southlands) for
settlement, business, Asians banned or restrained from accessing agricultural land. Business premises
were also segregated…..

2.8.4 Taxation in colonial Kenya

There were also concerns regarding taxation. The colonial government imposed tax on Africans who were
insufficiently represented if any in the colonial government. They were neither consulted before the
imposition of such taxes and at the same time, their interests were never served when the funds collected
were used by the government. How did Africans respond to taxation? Through evasion? Avoidance? 68

66
Ghai and McAuslan (1970) Public Law and Political Change in Kenya…; Jagjit Singh, “Potrait of an Asian and
an East African”
67
Discuss poll tax, hut tax.......
68
See Ochieng & Ogot....destroying houses, hiding in the lake, on trees.....
10
2.8.5 Labour in colonial Kenya

Kenya consisted of largely contended peasants.69 The British thus introducedinducement for contract
labour, forced labour, taxes as incentives, criminalized labour relations,

“Nyanza” and “Western” counties which comprise mainly the Luo, Luhya and Kisii were converted into
labour reserves or camps and people were forcibly recruited to work for the White settlers like Lord
“Dalmia” (Delamere).70 Thus, contented peasants were turned into proletariats.71

Significantly, the colonial Government was extracting resources, exploiting labour, and oppressing
Kenyans politically. It denied Africans freedoms and liberties including participation or representation.
There was poor governance….

2.8.6 The colonial land question in Kenya

The British continued to alienate land and changed land tenure and land law to even especially in
1902; 1908, 1915…. To what effect? usurfunctionary rights, bona vacantia (tenants at will) of
the Crown..72 Police powers ….agrarian reforms, especially under the Sir Morris Carter Land
Commission; (1934), The RJM Swynnerton Plan 1954….

2.8.6.1 Anglo-Maasai Land Agreements

The British alienation of land and changes to land tenure law, land and agrarian law has dire
consequences among the Maasai, Coastals, and other Kenya people . In 1904 and 1911 the British
signed agreements with the Maasai, regarding the alienation of Maasai land and movement of the Maasai
to the Laikipia area.73 Lenana represented the Maasai in the agreement. Did he have capacity? Duration of
the agreement? Consideration?74 Dispute resolution?
69
ESAO….Nyongo…Apolo Njonjo……
70
The delamare dynasty has been economically powerful into the 2010s.
71
ES Atieno Odhiambo (…) “The rise and fall of the Kenyan peasant,” 1888-1922,……..; ESAO (…) “Hegemonic
enterprises and instrumentalities of survival.....;” ESAO (…) Democracy and the ideology of order…” the rise,
decline, ...of the pesantry in Kenya, Central, Nyanza, Riftvalley, Coast. Different peasantries? Middle peasantry?
See Nyong’o, (….) The development of the middle peasantry in Nyanza..” ESAO, D. Mukaru Ng’ang’a (1981
“What is happening to the Kenyan Peasantry?” Review of African Political Economy (KAPE), 7-16……., Gavin
Kitching (1980) Class and eEonomic Change in Kenya: The Making of an African Petit Bourgeoise, 1905-70……
Yale University Press, New Havet….what did forced labour mean to British and Kenyan communities?
72
73
To discuss case, parties, offer, consideration,.....See W.T.W. Morgan (1960) “The White Highlands of Kenya,”
Vol.129, No.2, The Geographical Journal,
74
See issues arising from Anglo-Maasai “treaties” (sic: agreements) of 1904 and 1911, at
http://equalinrights.pbworks.com/f/Write+up+on+Anglo+Maasai+Treaties.pdf (accessed 3/6/2014). See also this
link on the same issues http://www.google.com/url?
sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=0CCEQFjAA&url=http%3A%2F%2Fwww2.ohchr.org
%2Fenglish%2Fissues%2Findigenous%2Fdocs%2Ftreaties%2Fbp7.doc&ei=2ZGPU-
bhIbCV7AaWhoCIDQ&usg=AFQjCNEsNfhVGsYX6rJRtBdypyg6yssrMQ&bvm=bv.68235269,d.ZGU&cad=rja
www.google.com
www.google.com. Why does Okoth Ogendo refer to them as “treaties,” in “The role of law in rural development
administration.”
11
The Maasai lost land and suffered health, ecological, economic, social and cultural problems and
constraints as a result of the disruption. 75 The Maasai land question was a major issue at the Lancaster
House conference (196-63) and at the Bomas of Kenyan Constitutional Review negotiations (2002-2005)
… In 2004: Maasai demonstrated in Laikipia, demanding lost land. The Kibaki administration through
Land Minister Amos Kimunya and security agencies beat them up 76…the black land a few White settlers
had replaced the original White settlers….77

The Maasai land question would emerge decades later, as seen in the Maasai protests in 2013 in Narok
against further encroachment on their land. The rate of land grabbing in Kajiado and Narok will have far
reaching implications. Remarkably, the Kajiado County Government launched new land policy seen as a
move to protect the county from invaders.78 The Maasai in the future may constitute the political minority
in the two counties and this may result to the Maasai being unrepresented or under-represented in the
elective posts of the state.79 This is also the case in Lamu County.

In primary school we had song during football matches: “Lenana there was a young Maasai…”

2.8.6.2 The lost Kalenjin lands in colonial Kenya

The Kalenjin, the Maasai and Kikuyu continued to lose land.80

The Kalenjin land especially the Nandi and Kipsigis land question is largely traceable to British
colonialism The British introduced a new system of land tenure and administration among the Kalenjins.
…These partly subsequently led to the declaration by Prime Minister Jomo Kenyatta in 1963 that the land
of Kenya belonged to all Kenyans and that all citizens had rights to live anywhere.

Kalenjin have argued that they lost a lot of land in the Rift Valley to the Kikuyus before and after
independence. Kenyatta and the outgoing British Government adopted at least four strategies and tactics
to settle the Kikuyu in the Rift Valley, and especially Kalenjin land. First, the British persuaded Moi, a
Kalenjin nationalist and later leader of the Kenya African Democratic Union (KADU) to work with
Kenyatta as part of the land transfer and Kikuyu settlement.81

Second, the British and Kenyatta negotiated loans from the British Government and the World Bank to
buy back the settler farms in the “White Highlands.” 82 Third, the Kenyatta Government allocated of
most of the land to Kikuyus who had been deprived of their land through Mau Mau pogroms; land
75
L. Hughes (2006a) Moving the Maasai: A Colonial Misadventure. Basingstoke, UK: Palgrave.
76
77
78
See County Government Launches New Land Policy at https://www.kajiado.go.ke/county-government-launches-
new-land-policy/ (accessed 7/9/2015).
79
Ahmednasir Abdulahi (2014) “Maasai risk been driven from their grazing lands,” Sunday Nation, March 29, 2014,
at http://mobile.nation.co.ke/blogs/Maasai-Land-Grazing-Narok-Kajiado/-/1949942/2262278/-/format/xhtml/-/
k17glw/-/index.html (accessed 3/6/2014).
80
The lost Kalenjin lands in colonial Kenya: Discuss. The lost Kikuyu land in colonial Kenya: Discuss
81
See also……Nation 13/10/19; story on Sally Kosgey quoting Moi as seeking protection through President George
W. Bush in 2002 in the context of his planned retirement, considering that he had agreed to work with Kenyatta at a
difficult time? To address difficult issues?
12
adjudication, consolidation and registration following the Swynnerton Plan; 83 or acquisition of their land
by Kenyatta and his affiliates.

Fourth, the Kikuyu bought land through Government subsidised land buying company through patronage
by Kenyatta and Kikuyu politicians Central Kenya as in the “Kikuyu and diaspora,” 84 especially the
whole Highlands.. In the meantime, Rift Valley also attracted other tribes as settlers or workers, including
the Kisii, Luhya and Luo. As a result, Kalenjins have had major conflicts related to land, opportunity and
other socio-economic resources with other tribes living in the Rift Valley since independence. But the
most recurrent dispute or conflict

2.8.6.3 The lost Kikuyu land in colonial Kenya

The Kikuyu land question is mainly attributable to the steps taken by Kenyatta after independence in
dispossessing the Kikuyu in Central Province settling his tribesmen (“my people”) outside Kikuyu land,
outside the former Central Province. Presidents , Jomo Kenyatta and Daniel Arap Moi used their powers
to make land and other Government resources and jobs accessible to members of their own ethnic groups,
and especially families, political and business affiliates and cronies. The Kikuyu living in Rift Valley
have had historical land and business related conflicts with the Kalenjins and the Maasai, while those
living at the Coast have had conflicts with the native coastal tribes. And some Kikuyu have apparently
claimed Nairobi, which belongs to all Kenyans.85

2.9 Decolonisation in Kenya and Africa

The decolonisation of Kenya began in earnest in about 1940. Two issues. First, is the problematique of
the dualism between resistant and collaborating tribes. Second, according to the late history Professor ES
Atieno Odhiambo (ESAO), no fixed date can be ascribed to decolonization 86…... Kenyans were always
resisting or collaborating or both, depending on context. For instance, the Kikuyu cooperated through
Waiyaki wa Hinga.87 Then resisted under Harry Thuku. Then cooperated under Thuku, Senior Chief
Waruhiu wa Kungu,88 Josiah Njonjo….And collaborated and resisted at the same time under Senior Chief
Koinange wa Mbiyu;. Luo, Kalenjin, Luhya, Kisii also resisted and/or cooperated depending on the
issues.89

The three main forms of decolonization were: First, peaceful negotiation and constitutional discussions.
These focused on freeing or liberating Kenya. These were through memoranda for example petitioning
for land rights and against colonial instrument of identification (kipande). This is part of the
constitutionalists’ perspective in the Kenyan struggle for independence. (Kenyatta, Achieng’ Oneko, TJ
Mboya Oginga Odinga Achieng’ Oneko)….
82
…cf Zimbabwe under Mugabe…South Africa under Mandela, Thabo Mbeki, Jacob Zuma, Cyril Ramaphosa…and
arguments by Malema and the Economic Freedom Fighters (EFF) Party….
83
84
Ngwataniro Mutukanio Land Buying Company……The land buying activities of Dixon Kihika Kimani, the father
of Susan Kihika (Nakuru County Senator, Jubilee Party, 2017...).
85
86
…..to quote ESAO in Ogot and Ochieng Decolonization and Independence
87
Lonsdale (….) “The prayers of Waiayaki” W.R. Ochieng (….) on Waiyaki, Kenyatta, Ngugi. Hak conference
88
British colonial injunction…..
89
ESAO (….) The Paradox of Collaboration and Other Essays Ben Kikorir Biographical Essays on Imperialism
and Collaboration in colonial Kenya, op. cit.
13
Second, militant and violent resistance included raids on colonial establishments, killing of colonial
administrators or their supporters, collaborators, supporters and sympathisers and disabling colonial
installations like railways .

Some of the more famous militant leaders in the colonial period included Me Katilili wa Menza, 90 Nandi
Warriors and Koitalel Arap Samoei, 91 Muindi Mbingu,92 Elijah Masinde of Dini ya Musambwa 93, Dedan
Kimathi,94 Stanley Mathenge (Mau Mau).95….

The third form was a mix of the two. For instance, most communities generally collaborated and or
resisted before, during and after the two World Wars, 1914-18; 1939-45. The First World War was fought
among the Germans, Austria-Hungary, Bulgaria and the Ottoman Empire on the one hand, and the Great
Britain, France, Russia, Italy, Romania, Japan and the United States (the Allied Powers) on the other.
Kenya, Nigeria, Uganda, Tanzania, Ivory Coast (Cote d’ Ivoire)...were involved in the war directly and
indirectly on either side. It was initially called the Great War; the war to end all wars. 96 Did it?
Significantly, Germany with its African possessions or protectorates including Tanzania (to the British)
and South West Africa (Namibia) to South Africa(?)

What was the Second World War about?97 Immediate and remote causes?98

It has been argued that both the First and Second “World Wars” contributed significantly to the upsurge
of tribal or ethnic and territorial African nationalism in Kenya, Nigeria, Uganda and South Africa. It is as
an upsurge rather than an emergence of African nationalism as argued by Western scholars, because
nationalism among Africans and Kenyans in this case was always extant and antedated colonialism. 99 The
major difference was its territorial scope once colonialism and confined more tribes within larger
territories…..

By African nationalism we mean that sense of shared identity common among Africans owing to shared
historical experiences such as (pre-colonial expression, cultural norms, racial origins, and traditional

90
Me Katilili wa Menza led the Giriama people in a rebellion against the British Colonial Administration and
policies actively in 1913 – 1914. See….
91
Koitalel Arap Samoei was an Orkoiyot (prophet), the supreme chief of the Nandi people. He led the Nandi
resistance against British rule, specifically leading the opposition to the construction of the railway.
92
Muindi Mbingu led the Kamba people in the 1930s in resisting colonial rule, although he would later be murdered
at the height of the State of Emergency in 1953 for collaborating with colonialists in hunting down Mau Mau.
93
Elijah Masinde also led a number of localised defiance campaigns against the colonial authorities, and was
imprisoned many times from 1944. He founded the religious movement, Dini ya Musambwa.
94
Dedan Kimathi was the senior military and spiritual leader of the Mau Mau Uprising.
95
Stanley Mathenge also led the Mau Mau rebellion, although it is believed they had leadership wrangles with
Dedan Kimathi. He disappeared in 1955 and was later reported to be allegedly living in Ethiopia. See cf. ESAO (…)
“Who were the Mau Mau?”…..
96
97
Who were the aggressors? What was appeasement about? Who were the warring states on both sides? Which side
did the following countries fight on? Kenya, S. Africa, Nigeria, Cameroon, Senegal, Uganda? What were the key
terms of the armistice or peace treaty? Cf victor's justice. How did WW II relate to the Cold War in terms of cause,
execution and effect of WWI. Cf DN Pritt’s prosocialogist analysis…..were the soviets always as selfless in WWII?
Portrayed by some?
98
99

14
social institutions.100 It describes the shared liking and affinity by a people as regards their origin.
Important is the fact that this African nationalism was always present among the Africans even before the
coming of the colonialists as evident in the organized way of life of African communities that shared
great identity and defended their territorial and cultural integrity. 101

Some have argued that Africans learnt about warfare from these wars and used it against colonialism. 102

Taban Lo Liyong,103 a Sudanese literary critic and poet, characterized this state of affairs in a most poetic
manner. He credited three white women with the renewed struggle for independence and nationalism
among Africans, namely Fredrick Nietsche, Adolf Hitler 104 and Karl Marx.105 Liyong was simply
exhorting Nietsche for coming up with the idea of the superman or the master race, Hitler for putting into
action the idea of Nietsche in Nazi Germany based on a master race ideology albeit in the most brutal of
means, and Marx for fuelling the idea of emancipation of the masses from economic exploitation by other
human beings in the upper social class.

What is not in doubt is that many Kenyans who went to the wars became more politically, socially,
technology, and culturally conscious. They became more conscious about the problem of racism or
kalaba (colour bar) and the desire for economic, political social and cultural freedom. They learnt that the
British were also vulnerable in war. They had behaved as if they were invincible. The two World Wars
helped in the deconstruction of the lie and myth that the White man was superior, which also acted as a
huge psychological boost for the African.106 The Africans also internalized the British rhetoric
fightingfreedom against fascism including Nazism, yet Africans were not free in Kenya.

The Africans also learnt war technics and technologies in the two wars…..107

2.10 The 1952 Conjuncture in Kenya

In 1952, the young and restless group of militants that had been circumcised in 1940 (the Group of 40s or
the “Anake A 40”) took up arms and went to Mt Kenya and the Aberdare, among other forests. Mau Mau
struggle was marked by, among others, the declaration of a State of Emergency by Governor Evelyn
Baring also the same day that the Kapenguria Six were arrested (October 20, 1952). 108 Then followed the
100
101
To summarise this para into a three pronged typology and cross ref….
102
F. Cooper (1994) “Conflict and connection: Rethinking colonial African history,” American Historical Review
1516-1545….
103
Cite historians, political scientists.....
104
Source......cite on Hitler....quote the poem on “they came for jews, the trade unionists.....”
105
…..see also Chapter…Theory and Methodology of Comparative Constitutional and Admin Law, and Land and
sustainable Development in Kenya and Africa……
106
Ndabaningi Sithole (1968) African Nationalism, (2nd Edition) New York, Oxford University Press, 1968), at 47.
The author notes, “This discovery (the discovery that the white men also bled, were scared and got killed in the
world wars), for indeed it was an eye-opening discovery, had a revolutionizing psychological impact on the
African.” (emphasis mine). Cf “the rich also cry” a TV series in the early 1990s.
107
Some have contested this, for instance Ngugi wa Thiong’o and Micere Githae Mugo (…) The Trial of Dedan
Kimathi (a play).
108
Legal instrument declaring the state of emergency; the emergency regulations. How many were arrested?
Restricted? The state of emergency was finally lifted in January 1960. Most detainees were released and restrictions
on Kikuyu movement ended, leading many to travel to the highlands seeking work. Cf- Ocampo Six; especially
misplaced analogy with Kenyatta at ICC.
15
capture and hanging of Field Marshall Dedan Kimathi wa Waciuri (1956; 18/3/1957). Numerous people
suffered death,109 injury,110 torture,111 restriction of liberty,112 detention without trial, concentration camps,
destruction of and damage to property.

By 1958, rural Kikuyu and Embu were organizing once more under a new secret society known as Kiama
Kia Muingi (Society or Council of the People) opposing land consolidation and representing a continued
thread of support of Mau Mau.113 114Significantly, the argument that Kenya’s Constitution was an entirely
negotiated instrument is not accurate. Nor is the argument that militancy alone brought independence. 115
The literal interpretation of Rudyard Kipling’s poetic argument that England should civilize the natives
had failed. The message of the “poet of imperial England was taken up by those who Poet of urged the
US to take up the “burden” of the empire as had Britain and other European nations.

2.11 Mau Mau Phase I in Kenyan Public Interest Lawyering

The Mau Mau uprising presented one of the earliest contexts for strategic litigation or PIL.
Whatever the causes, historians are agreed that Mau Mau was the product of and led to
marginalization especially among the Kikuyu. Land deprivation, deprivation of indigenously
relevant education, and female circumcision. 116 And there is general consensus that Mau Mau’s
outcome is manifested in continued deprivation of the initial Kikuyu under class, as well as a
disenfranchisement of a broader spectrum of Kenyans on the claim that only certain individuals
or groups fought for independence and are thus entitled to the fruits of independence or Matunda
ya Uhuru (in Swahili).117

Many Mau Mau supporters or suspects were subjected to mass killings, torture, detention
without trial, mass trials, concentration camps hence denial of basic liberties, property and
security, and further economic and political deprivation. The six leaders of the Kenya African
109
110
111
Does Prof Caroline Elkins appreciate the implication of her exaggerated numbers on death toll and incarceration
in a Kenya where Mau Mau is used to post justice…post independence tribal colonization and hegemony..eg ESAO,
Matunda ya Uhuru? Prof Elkins has been justifying her data and arguments….contra Lonsdale..Anderson..Ogot…..
112
113
Charles Hornsby (2012) Kenya: A History since independence, I.B. Taurus & Co Ltd, London, New York, at 59.
114
Ali Mazrui calls Kipling “the poet of imperial England” in The Africans: A Triple Heritage…..Some argue tha
Kipling poem was satirical…..To quote Kipling’s “The White Man’s burden…” and relevant parodies of it.
115
Rudyard Kipling (1929) “The White Man’s Burden: The United States & The Philippine Islands, 1899.” Rudyard
Kipling’s Verse: Definitive Edition (Garden City, New York: Doubleday, 1929). Available at:
https://www.google.com/url?
sa=t&rct=j&q=&esrc=s&source=web&cd=10&cad=rja&uact=8&ved=0CFsQFjAJahUKEwjHxNP94rLHAhVpG
tsKHaTBAAE&url=http%3A%2F%2Fctah.binghamton.edu%2FJusticeDocs
%2Fwhite.mans.burden.doc&ei=5jfTVce5Dum07Aakg4MI&usg=AFQjCNEDA2jlN01BAST7tcgmW2pk4jGr4Q&si
g2=7uqjAiduWk9WbnlmkYBBBQ&bvm=bv.99804247,d.ZGU. (accessed on 18/08/2015). Was Kipling a parodist?
116
ES Atieno Odhiambo (2003) “Seven theses on Mau Mau,” in ESAO & Lonsdale (eds) Mau Mau and Nationhood;
Lonsdale, “The moral economy of Mau Mau: Wealth, poverty and civic virtue in Kikuyu political thought…”;
David Anderson (….) “Mau Mau in the High Court …and the ‘lost’ British Empire…,”… Waunyabari Maloba,
“Mau Mau and Kenya: An Analysis of a Peasant Revolt”……;Tabitha Kanogo (…) Squatters and the Origin of
Mau Mau…..
117
ES Atieno Odhiambo (2003) “Seven theses on Mau Mau,” ibid.
16
Union (KAU) consisting of Jomo Kenyatta, Bildad Kaggia, Richard Ramogi Achieng Oneko,
Paul Joseph Ngei, Fred Kubai and Kungu Karumba118 were arrested and put on trial for six
months from November 1952 to April 1953.119 It was alleged by the settlers, Colonial
Government and British Government that between October 12, 1950 and October 20, 1952, the
six accused persons had been members of Mau Mau, an unlawful society.” 120 Kenyatta was also
charged with managing Mau Mau. The other five were also charged with assisting Kenyatta in
the management of Mau Mau….

They were accused of conspiring together and with persons not before the court to commit
felony by physical force or by threat or intimidation to compel persons in the Kenya Colony to
take an oath to bind the persons to act in a certain way.121

KAU was the nationwide political party and therefore the arrest, prosecution and defence of its
leaders was a matter of public interest, even though KAU’s management had been ethnically and
culturally insular and its political programmes ineffective.

By September 1952, the courts had jailed more than 500 Mau Mau supporters, most with no
legal representation.122 A few lawyers came forward to offer PIL and pro bono legal service
including Denis N. Pritt, AR Kapila and CMG Argwings Kodhek and what Pritt acknowledges
as “junior Kenyan lawyers”.123

The trial of the Kapenguria Six proceeded with heavy pressure from the British Government to
have the accused persons convicted.124 Some of the three key issues that negated public interest
in the trial included: First, location of the trial in Kapenguria, a distant, inaccessible, “closed”
district, rather than Nairobi or Kiambu or Nyeri where the alleged offences reportedly occurred.
Second, the appointment and bribery of the retired Judge R.S. Thacker who was the trial
magistrate.125 And bribing and perjury associated with the principal (or star) witness, Rawson
Macharia, the self-proclaimed bush lawyer126……At the end of the trial, the six were found
guilty and sentenced to seven years imprisonment with hard labour. On Appeal to the Kenyan

118
While the five were national officials, Karumba was a local (district) official of KAU.
119
Paul Mwangi (2001) The Black Bar : corruption and political intrigue within Kenya's legal fraternity, Oakland
Media Services.
120
D.N. Pritt (…) “The Kenyatta cases” in D.N Pritt, The Defence Accuses…..;….Montagu Slate, The Trial of Jomo
Kenyatta…Contra Rawson Macharia, The truth about the Trial of Jomo Kenyatta…..
121
Ibid. See also https://www.theeastafrican.co.ke/magazine/Case-that-immortalised-Kenya-Kapenguria-Six-/
434746-3995106-s8sxn5z/index.html (accessed 12/9/2019).
122
John Kamau (2019) “Argwings-Kodhek: The politician history should never forget, Daily Nation, Nairobi,
27/1/2019, at https://www.nation.co.ke/news/what-made-Argwings-Kodhek-special/1056-4952900-gpsvmwz/
index.html (Accessed 16/9/2019).
123
D.N Pritt “The Kenyatta cases”….
124
Paul Mwangi The Black Bar, op. cit.
125
Montagu Slater, The Trial of Jomo Kenyatta…, ibid; D.N Pritt, “The Kenyatta Cases,”….ibid.
126
Macharia, The Truth about the Trial of Jomo Kenyatta, ibid; D.N Pritt, “The Kenyatta cases,” ibid.
17
Supreme Court (current High Court), Achieng Oneko was acquitted. But they all served term all
the same, with the five in prison and Oneko interned in a concentration camp…127.

2.11.1 CMG Argwings Kodhek’s contribution as “Mau Mau lawyer”

Clement Michael George (CMG) Argwings Kodhek (CMG or Agwingi…) was the first African
Kenyan lawyer in Kenya. According to reports, after returning to Kenya from Britain where he
had been admitted to the bar, CMG had first sought employment at the Attorney-General’s
chambers but was given a salary which was “a third of what Europeans in the same grade were
getting.”128
He reportedly protested and left to start his own law firm at Church House and was the only
African in Kenya with a law firm. CMG would start his practice by taking up the criminal cases
which Mau Mau fighters faced.

The pioneer Kenya historian Prof Bethwell Allan Ogot described CMG’s role in PIL in the
following words:

“Almost single-handedly, Argwings-Kodhek took on the formidable challenge of defending the

rights of ordinary Kenyans during this critical period,”129

Ogot adds:

“He argued that human rights are indivisible and universal and that freedom cannot be
appropriate in the West and inapplicable in Africa.”

To the Kenya Africans CMG was a liberator and a hero, Chiedo Mor(e) Gem (the frying soil of
Gem) as he was referred to by himself and his supporters. To the whites, CMG was an upstart
and a demagogue.

Shortly after the 1953 Lari Massacre, in which 150 Mau Mau loyalists, including Chief Luka
Kahangara, were killed, Argwings-Kodhek is reported to have helped 48 of those charged to
successfully appeal on a legal technicality.130

The Daily Nation would later describe CMG’s role thus:

127
D.N Pritt, “The Kenyatta Cases…” ibid.
128
He waxed Shakespearean in responding to whites who sneered at African lawyers: “Woe and wilt upon Brittania,
that she chooses to export to most stupid and vile of her son, oh mistaken queen, come and evacuate these
simpletons who understand nothing of you, neither your jurisprudence nor your language” See Coast week
online….;…and 50th Anniversary programme 29/1/19, Nairobi and on.3/2/19 in Gem Nyawara, Siaya County.
129
John Kamau (2019) “Argwings-Kodhek: The politician history should never forget, op. cit. See BA Ogot , A
History of the Luo speaking people of Eastern Africa , 736-790. B.A. Ogot (1995) Politics of Populism in Kenya,” in
B. A Ogot & W.R Ochieng (eds) (1995, 1996) Decolonisation and Independence in Kenya, 1940-93, James Currey,
London, EAEP, Nairobi, & Ohio UP, Athens. 1963-1995, in Ogot & Ochieng (eds) Decolonization and
Independence
130
John Kamau, “Argwings-Kodhek,” ibid.
18
 “As the sole African criminal lawyer, he made it his duty to defend the Mau Mau, and he did it
with gusto traversing Nairobi and Central Kenya courts to the chagrin of colonial settlers and the
establishment.”

The Nation adds:

“The Western media hated him too and dubbed him the “Mau Mau lawyer” — which was
supposed to be demeaning.”131

CMG also represented Mau Mau suspect, Yusuf Waruru Kanja, the would be Nyeri Town MP
and Minister in the Kenyatta and Moi administration.132

Argwings-Kodhek was married to Mrs Mavin Tate Argwings Kodhek and later Mrs Joan
Ominde Argwings Kodhek and had children who would later serve in public life. CMG would
later become the first Member of Parliament for Gem in Siaya, serving from independence in
1963 to January 29, 1969 when he died following a “road accident.”133

Thus D.N. Pritt, CMG, A.R. Kapila and J.M. Seroney, among a few lawyers established the
tradition of public interest lawyering, in the narrow and broad sense that includes litigation, legal
advisory, using political process and activism.

2.11.2 Contribution of DN Pritt to PIL in Kenya

Denis Nowel Pritt was a British lawyer and politician. He was a self proclaimed “political
Lawyer,” a term he used to describe what is now called strategic or public interest lawyring.
Prittm oved from the right (Tom) to the left inspired and occupied by the Labour Party. He was
influenced by neo-Marxist, social democratic, socialist and communist movements. He later
became independent after expulsion from the Labour Party…..134

What role did he play in the trial of the Kapenguria 6? In defending TJ and 6 AEMO members 135
DN Pritt’s representation of the Kapenguria 6 of Rawson Macharia (on a perjury charge), 136 and
the AEMO 7 (TJ Mboya and Co.) further illustrate the role of public interest lawyering in
131
Ibid.
132
Kanja had been charged under the Emergency (or anti Mau Mau) laws and regulations…
133
Toyin Falola & Atieno Odhiambo (eds) The Essays of Bethwell Allan Ogot: The Challenges of History and
Leadership in Africa, Africa World Press, Inc. Asmara, Eritrea, 346-347.
134
See D.N Pritt (1965) From Right to Left, Lawrence & Wishart, London. Parastatals and bureaucrats”; See D.N.
Pritt (1966) “The Kenyatta Cases,” in DN Pritt (1966) The Defence Accuses: Part 3, Lawrence & Wishart, London,
Chapter 8…
135
See D.N Pritt (1966) “Cases in Cyprus, Kenya, Uganda, Tanganyika,” in DN Pritt, The Defence Accuses: Part 3,
Chapter 13, 177-190, at 179-181; D.N Pritt (1966) Brasshats and Bureaucrats: Part 2, Lawrence & Wihart,
London.
136
The public interest demanded that the profiteering villain Rawson be represented. The strategy was to seek
nullification or at least discredit the conviction of the Kapenguria 6…which had been mainly based on his evidence,
that he had now recanted on oath.
19
economic and cultural struggle and emancipation. The challenge is addressing the intra and inter
class as well as inter ethnic or gender cleavages.

Thus, the legal representation by Pritt and his team helped justify grievances of the accused, of
the Mau Mau, and the cause for independence. However, it could not help prevent the future
narrow uses of Mau Mau or militant struggle to justify post independence hegemony...

2.12 Mau Mau Litigation Phases 2, 3 and 4 and PIL in Kenya and the UK
The Mau Mau revolt resurfaced in public interest lawyering in the 2000s and 2010s. First, a
claim for the Mau Mau killed or injured was brought in London through the law firm of Leigh
Day seeking Compensation of 4.5M Pound Sterling.137

The third phase involved a further claim. The court ruled that at least 50 years had lapsed since
the alleged atrocities. That the matter can’t be litigated, there would be no fair trial since the
defendants may not easily defend themselves.

Contrarily, such arguments may stand with respect to vulnerable, weak, private defendants. Here,
the main defendant is the UK Government and Government officials who bore and bear official
and personal responsibility. They should be able to have evidence given the matter had never
been resolved138…

The fourth phase of the Mau Mau litigation involved the Law Society of Kenya (LSK) making a
claim in the Kenyan High Court against the Kenya Human Rights Commission (KHRC), the UK
law firm of Leigh Day, and Mau Mau War Veterans Association139

LSK made the claim as a public interest issue. They inter alia, faulted Leigh on the manner in
which the suit was handled. The legal fee stood at KES 769,680,000 out of the KES 2.5 Billion
paid out by the British authorities. LSK argued that the amount is more than 40 per cent of the
total benefits, which they claimed is illegal. 140 Leigh was also faulted for “recruiting clients” in
Kenya and practising without a practicing certificate. The Court dismissed the claim on the
ground that the public interest issue that the LSK sought to protect was brought too late in the
day; and that the advocate client privilege between the Mau Mau victims and their lawyer
protected them.141

137
Ndiki Mutua & Others v. Commonwealth Office, London No. HQ 09XO 2666 of 2012.
138
In any event, some UK government officials sought to destroy evidence on 1950s……
139
Law Society of Kenya v. Martin Day & 3 others Civil Case 457 of 2013 [2015] eKLR.
140
Isaac Ongiri (2013) “Law society sues firm over Mau Mau case,” Daily Nation, Nairobi, 7/12/2013, at
https://www.nation.co.ke/news/Law-society-sues-firm-over-Mau-Mau-case-/1056-2103426-clb0uhz/index.html
(accessed 20/9/19).
141
Law Society of Kenya v. Martin Day & 3 others, Ibid.
20
The four phases of Mau Mau (MM) litigation address the issue of British reparation for colonial
atrocities against Mau Mau. What about the British and Kenyan Government reparations for
colonial and post colonial murder, assassination, deprivation of liberty, taxation, forced labour,
exclusion from public office or opportunity….142 The lessons learnt on the Mau Mau cases and in
the PIL cases in the Kenyatta, Moi, Kibaki and Kenyatta 2 administrations have been useful in
securing the potential of PIL in matters concerning diverse issues such as class, ethnicity or tribe
and gender, as well as in criminal, civil and related cases…

2.12 Kenya’s independence struggle: the radicals v. the constitutionalists v conjuncture and
synthesis

An accurate narrative must capture the constitutionalists’ and radicals’ perspectives on the
struggle and meaning of Kenya’s independence.

2.12.1 The radicals’ argument on Kenya’s Independence143

The radicals are the militants, politicians, activists, academics, scholars and commentators or
pundits who support(ed) the argument that Kenya’s independence was attained through violence
and militancy in Mt Kenya and independence was nyakwa-d or grabbed. These include Dedan
Kimathi wa Waciuri and his Mau Mau group, various supporters of Mau Mau. What of Elijah
Masinde’s Dini ya Musambwa, and other affilliated violent or militant groups?

142
Compare the perspectives of Prof Carol Elkins, Harvard history professor and one of the researchers who
supported the MM case in London, in Carol Elkins “Britain has said sorry to the Mau Mau. The rest of the empire is
still waiting…”
143
John Lonsdale (1992, 1997) “The moral economy of Mau Mau: The Problem,”in Bruce Berman & John
Lonsdale (eds), Unhappy Valley: Conflict in Kenya and Africa: Book Two: Violence and Ethnicity.
James Currey , EAEP & Ohio UP, Oxford, Nairobi & Athens, 265-314 (Chapter 11)
John Lonsdale (1992, 1997) “ The moral economy of Mau Mau: Wealth, Poverty and Civic virtue in Kikuyu
Political thought” in Berman & Lonsdale, ibid, 315-504 (Chapter 12);
ES Atieno Odhiambo, “Matunda ya Uhuru, Fruits of Independence: Seven Theses on Nationalism in Kenya,” in ES
Atieno Odhiambo & J. Lonsdale (eds) (2003) Mau Mau and Nationhood: Arms, Authority and Narration, Ohio
University Press, Athens. Summarise ESAO these in text.....Ben Sihanya (2018) “The Kikuyu Uthamaki
Constitution versus the Kenyan Constitution and state,” Provisions include: Art 1 Kenya is an uthamaki state; Art 2:
Kenya leadership and the titles shall remain in the House of Mumbi. Art 3: Security, finance, education shall be
controlled directly and indirectly by a member of the House of Mumbi; Art 4: Employment, contracts, tender and
even “corruption” shall be controlled by co-ethnics, kins people, “our own” andu witu,mOundu wa nyumba, and not
andu waruguru...
21
The scholars or academics include historian Maina Kimani wa Kinyatti, 144 novelist Ngugi wa
Thiong’o, poetess Micere Githae Mugo,145 historian David Mukaru Nga’ng’a, historian? Mwangi
wa Githumo,146 and younger Mau Mau or uthamaki commentators(?)

This group regards non-Kikuyu militants like Elijah Masinde and his Dini ya Musambwa as
irrelevant or unimportant.147

The argument is that the Kenya African Union (KAU) was taken over by the radical groups
(especially the Kenya Land and Freedom Army (KLFA) or the Group of 40 (Anake 40). They
did not want roundtable debates but took to arms in fighting through the Mau Mau in the forest
and in various sites in Kenya. The strategies and tactics included labour agitation, sabotaging
White projects, and guerrilla warfare.148

On October 20, 1952, some of the African leaders were arrested as Sir Evelyn Baring declared a
state of emergency, which many White settlers had demanded for some time.149 The Kapenguria
6 were arrested and tried. Who were they and what were their actual roles in the independence
struggle? In the post-independence dispensantion? The Kapenguria trial was the closest point of
convergence between the Mau Mua militants and the constitutionalists. Three issues.

First, of the Kapenguria Six were being charged with belonging to and managing the Mau Mau,
an illegal society.150 The other five were charged with being members of and assisting in the
management of Mau Mau.151 .

Second, the Kapenguria Six denied the charge and argued they wishes to secure
independence .”by constitutional means”

144
Kinyatti helped establish the Mau Mau Research Centre in the US. What are the prog..participants? He used to
teach at Kenyatta University and fled after he was imprisoned for sedition. His eyesight was impaired in gaol.
145
Ngugi and Micere are creative writers and literary scholars. See Ngugi’s Detained and the preface to their drama,
The Trial of Dedan Kimathi, in which they seek to correct (or revise) Mau Mau history. They argue, inter alia, that
Mau Mau was the most glorious chapter in Kenyans’ struggle against foreign economic, political and cultural
domination; that it was a nationalist movement; that Kimathi never learnt military skills from the (White man’s)
Second World War, etc. Cf. Dinesh D’Souza “Two cheers to colonialism: How the West Prevailed”...; Dinesh
D’Souza (2002) What’s So Great About America, Regnery Publishing, USA, Chap. II……..
146
Cf the defensive Mwangi wa Githumo, “The truth about Mau Mau movement: The most popular
uprising…”Most popular compared to other militant movements? Which? Or constitutionalist political makeshifts?
Popular also among victims of Mau Mau in Kikuyuland, and in the rest of Kenya? Cf th book, Mau Mau
Children……Some killed by Mau Mau to grab their land…supporters of Ambrose Ofafa….Tom Mamboleo…..snr
chief Wambiu….
147
Cf Ben Kipkorir(....) Biographical essays on imperialism and collaboration in colonial Kenyan…….
148
Cite historians, bibliographies, memoirs, intelligence reports..Corfield Report,..Mau Mau insurgency....Books by
participants like Kimathi, Gen China Kaggia, Karari wa Njama, JM (…) Mau Mau Detainee; Rosberg &
Nottingham; David Anderson, Caroline Elkins; ESAO (1981) “Who the Mau Mau;” HAK ; ESAO (1981) “Mau
Mau in the international press…. HAK..etc.
149
150
Mau Mau had been proscribed under the Emergency Regulations 1950….
151
See Ben Sihanya “Public Interest Lawyering and Constitutional Reform in Kenya and Africa since CMG
Argwings Kodhek,” presentationa at the University of Nairobi and Oxfam International Conference on Strategic and
Public Interest Litigation, October 204, 2019.
22
Third, the key strategic support for the Kapenguria Six came from the constitutionalists,
including TJ Mboya and lawyers in including Denis Pritt, A.R. Kapila, CMG Argwings Kodhek,
among others. The masses who had been split and the question of militancy or then Mau Mau
before the arrest and trial generally supported the Kapenguria Six.

The emergency regulations confined the Kikuyu Embu Meru (KEM) to their homelands. They
and others needed passes to travel...152

KAU and nationwide political parties were prohibited.153

Emergency restrictions were lifted in 1960. 154 But the prohibition of Mau Mau lasted much
longer.

How did Mau Mau influence the struggle in other African states, especially with whites like
South Africa, Zimbabwe (Southern Rhodesia),155 Algeria,156 Namibia (South West Africa)157

Since 1960, there has been a more controversial debate regarding the role of the radicals (Mau
Mau, etc) as well as the constitutionalists, in the attainment of independence.

Curiously, Prof Macharia Munene made the argument linking the cases facing President
Kenyatta and DP Ruto at the International Criminal Court (ICC) with the pre-independence
Kapenguria trials. He drew a similarity of the Hague as the new Kapenguria. 158 The comparison
is misplaced and spurious. The comparison is an affront to the Constitution and the direct and
indirect victims of post-election violence (PEV).

There are at least six reasons for this. First, the Kapenguria 6 and the Mau Mau confronted a
racist, colonial Government. ICC was about a tribal Governmengt using manipulation against
non Kikuyus to rig elections and stay in power.159

Second, unlike ICC cases, the trial of the Kapenguria 6 was based on colonial land oppressive
law. The ICC cases were based on the Constitution of Kenya, and the statute of the ICC which
Kenya had negotiated, signed, ratified, and enacted as the International Crimes Act, (….). 160

152
See David Percox (2012) Britain, Kenya and the Cold War: Imperial Defence, Colonial Security and
Decolonisation, I.B Taurus, London, New York; Muthoni Likimani...Pass No...WR Ochieng (1984) “The ghost of
Kenyatta in Mau Mau fiction,” HAR; W.R Ochieng (1984) “Kenyatta and Mau Mau...” ESAO (1991 “Kenyatta and
Mau Mau.” C. Odegi Awuondo (1984) “The rise of the cheering crowd...”
153
See Ben Sihanya (due 2019) “Bill of Rights, Participation and Representation in Kenya and Africa: Electoral
System, Parties, CSOs, Business Organisations, Tax Justice and Welfare Association,” Chapter 5, CODRALKA 1.
154
155
156
157
158
Stephen Muthini (2013) “History don says Kenya ICC cases similar to Kapenguria trials,” Daily Nation, Nairobi,
6/12/2013, at http://mobile.nation.co.ke/counties/ICC-cases-similar-to-Kapenguria-trials/-/1950480/2101692/-/
format/xhtml/item/0/-/14qo6pq/-/index.html (accessed 21/05/15).
159
See CIPEV (the Waki Report)….
160

23
Third, there was overwhelming evidence on the ICC cases. Part of that evidence was in the ICC
website, and included Dr Peter Mwangi Kagwanja’s articles on the criminal and political users of
Mungiki. The main challenge was that witnesses kept dying or disappearing (and not because of
climate change)? In the Kapenguria 6 case, most of the evidence was fabricated, including by
bribing Rawson Macharia who perjured himself….………Fourth, most of the ICC suspects
controlled the machinery of Government at one point or another before or during the trial and
had unfair advantage against the “victims”… …….Fifth, most of the ICC suspects used state
resources to defend themselves, unlike the Kapenguria 6…….Sixth, for most of the ICC
suspects, lawyers, supporters and the Hague were more easily accessible than what the
Kapenguria 6 had faced…..

2.12.2 The constitutionalists or liberals arguments on the struggle for and meaning of
independence161
Who were or are the constitutionalists? What did or do they stand for? What did they do?

These are the political leaders, as well as the intellectuals, commentators, analysts, and pundits
who advocate(d) peaceful and negotiated constitutional change. They include Kenyatta, TJ
Mboya, Oginga Odinga, Ronald Ngala, Daniel Arap Moi, Masinde Muliro, Martin Shikuku, Paul
Ngei, Lawrence Sagini, among others.

The intellectuals in this group include Professor Yash Ghai, H.W.O Okoth-Ogendo, J.B.
Ojwang, B.A. Ogot, E.S. Atieno Odhiambo, Tabitha Kanogo, John Lonsdale, Godfrey Muriuki,
Wunyabari Maloba, Dr Ben Kipkorir, Profs Henry Mwanzi, Gideon S. Were, and William R.
Ochieng, among others.

The constitutionalist’s argument focus on constitutional development or advance or at least two

major founts. First, peaceful agitation, through petitions and memoranda and repatriation on the
land question. And second, broader political participation through welfare and tax payer
associations; and and on party formation and a parliamentary representation. ….Third, broad
based constitutional reform…..162

2.13 Contesting the meaning, uses and abuse of the radicals’ arguments on Kenya’s
independence
How have the Kenyatta Kamaliza, Moi, Kibaki and Kenyatta Kamwana regimes used and abused
Mau Mau in the reconstruction of the Kenyan political economy, cultural politics, constitution
and state? Only (political) historians have consistently debated the role of the Mau Mau, violence
and military in the reconstruction of Kenya.

Historians have done this as individuals and within the framework of the Historical Association
of Kenya (HAK). The most remarkable debates are Ogot’s Presidential address to HAK in 1981,

161
On the various dimensions of and contributions to the decolonisation, nationhood and post-independence process
and discourse, see B.A. Ogot & W.R. Ochieng (eds) (1995) Decolonization and Independence in Kenya, 1940-1993
James Currey, London, EAEP, Nairobi, Ohio UP, Athens. See also 2.4.2.
162
These are discussed in Chapter ….of CODRALKA 1…on Public Participation and Representation in the (post)
colonial Constitution in Kenya and Africa.
24
1984 proceedings which were dedicated to Mau Mau. Kenyatta’s role in it and Ngugi’s
interpretation of Mau Mau in his novels, plays and essays,163 novels.

First, some constitutionalists, liberals and moderates argue that Mau Mau was a peasant revolt
against White domination and exploitation; and sought the recovery of lost lands.164

Second, some scholars like Prof Maina Kimani wa Kinyatti, Prof Ngugi wa Thiong’o Prof
Micere Githae Mugo argue that Mau Mau was a freedom struggle to attain Kenya’s - not just
Kikuyu –land, liberty, (including the right to female circumcision) and Karing’a or independent
schools165 That was the peak of Kenya African nationalism…..the “most popular
uprising”……166Kinyatti and others have even edited or revised some Mau Mau songs to read
“Kenya” instead of “Kikuyu.”167

Remarkably, Kimathi University established Mau Mau research and archiving in the context of
the 50th anniversary of Kenya’s independence.168

Third, others contend that Mau Mau was an intra-ethnic (Kikuyu) civil or class war between the
landless (ahoi), the exploited and frustrated, or essentially the Nyeri Kikuyu and the Meru, on the
one hand, and the homeguards of the White man, families of colonial chiefs and other
collaborators of the White man, or essentially the Kiambu Kikuyu, etc on the
other.169Reconstruct for clarity, brevity.170

Fourth, historians like the late Dr Ben Kipkorir and Dr Henry Mwanzi contend that national
freedom strugglers, unlike Mau Mau, left the forest for State House straight away. 171 Meaning
those fighting for national independence are the ones who eventually become the national
leaders.

Some illustrate this thesis by citing Yoweri Kaguta Museveni’s NRM/NRA, Paul Kagame’s
Rwanda Patriotic Front (RPF) which led the process in the context of the genocide in Rwanda,
respectively. Others also argue that in the same vein, DRC rebels, under the late Laurent Kabila,

163
ESAO (…) “The production of knowledge on Mau Mau,”….. ESAO Kenyatta and Mau Mau….; ESAO (….)
Seven theses on Mau Mau: Matunda ya Uhuru…. Ochieng on Ngugi...and on Kenyatta. Odegi Awuendo, “The rise
of the cheering crowd.” (on Ngugi, MM, Moi.....
164
Cf. Tabitha Kanogo (1987) Squatters and the Roots of Mau Mau, 1905-63, EAEP, Nairobi (reprint 1993)…..
165
166
See Mwangi wa Githomi (….) “Mau Mau: the most popular uprising in Kenya,” op. cit.……
167
Cf. Ngugi wa Thiong’o (1981) Detained: A Writer’s Prison Diary, East African Publishers, Nairobi; republished
as Ngugi wa Thiong’o (….) Wrestling with the Devil: A Prison Memoir…….. Atieno Odhiambo, Ogot (1972) “The
revolt of the elders: an anatomy of the loyalist crowd in the Mau Mau uprising 1952-1956,” in B.A. Ogot (ed)
(1972) Politics and Nationalism in Colonial Kenya, East African Publishing House, Nairobi. [quote some of the
sayings in original by Ogot]; and as rendered by Kinyatti.
168
See Dedan Kimathi University website, at https://www.dkut.ac.ke/index.php/news/47-latest-news/308-mau-mau-
education-centre-workshop (accessed 28/6/2019). ......
169
Cf William Ochieng (1972) “Colonial chiefs: were they primarily self-seeking scoundrels?” in B.A. Ogot (ed)
(1972) Politics and Nationalism in Colonial Kenya, East African Publishing House, Nairobi, pp 46-70.
170
On chiefs who were the collaborators...which location...See Ben Kipkorir ……; cf ……(…) Muganda K’Okwako
Amoth Owira……….………
171

25
etc marched to power (after mobutu forces were defeated and after he had refused to renegotiate .
They argue that Mau Mau was defeated and its leaders hanged by 1956.

They stress that Mau Mau did not immediately lead to Kenya’s independence because it was
defeated 7 years before independence. To them, Mau Mau may have remotely contributed to
independence, but was not the decisive or definitive cause of independence. Had it been MM,
independence would have been altered in 1957 or 1958, not 1963.

Fifth, it is also argued that Mau Mau had no programme on the meaning of independence or on
governance, or on the management of national resources. An example is the fact that MM leaders
had no (published) plan on how they wanted to administer or manage land and power had been
much occasioned by the Jomo Kenyatta (K1) and subsequent administrations including K+ as
well as among majority of Africa’s failed states. A recent case study can be argued to be the
Republic of South Sudan.

Sixth, there were many other protest and militant movements in Kenya besides Mau Mau among
the Nandi, Luhya (eg Dini ya Musambwa), Maasai, Luo (cf. Piny Owacho Movement or voice of
the people movement).

Seventh, even within Mau Mau many other ethnic groups and individuals contributed to the
militancy.172 Eg among the ...in Holla

Eighth, that Mau Mau killed more Kenyan Africans than Whites (e.g. Cllr Ambrose Ofafa after
whom Ofafa Jericho is named). Some have asked: who and how would Mau Mau govern given
that they were killing and polarising or dividing Kenyans?

At the end of this some people were not accepted in Government. There were arguments only the
Kikuyu were in Mau Mau (leadership).

What would Kimathi do with power? Was his declared being the first PM an end in itself for
him? Given the limited tolerance that led to splits with (eg) KAU, Kenyatta and within Mau
Mau Gen Mathenge faction), how would Kimathi or Mathenge lead a multi tribal independent
Kenya? In 1984 Kenya Historical Association organised a conference on the role of Kenyatta
and Mau Mau in historiography. Who was Kenyatta? A fire eating revolutionary or Black Moses.
Ngugi portrayed Kenyatta in Weep Not Child? Did Kenyatta change from a revolutionary to a
conservative opportunist as Ngugi argued in Detained?173

Others argue that Kenyatta never founded anything: not KCA, not KAU, not KANU, but was
always a manipulative and opportunistic follower. But his two strengths appear to be first,
reminding Kenyans of Nkrumah’s slogan: seek ye first the political (not economic) kingdom.
And second, preaching the lessons he learnt from Pan Africanists like George Padmore Peter
Abrahams, Francis Kwame Nkrumah.....174

172
See Ogot,.. Atieno Odhiambo…., John Lonsdale …..essays in Mau Mau and Nationalism……
173
Cf. Ngugi (1982) Detained; republished as Ngugi wa Thiong’o (2018) Wrestling with the Devil: A Prison
Memoir….see also Weekly Review report on Historical Association of Kenya Conference early 1980s.
26
The emphasis was that power was in the UK, nationalists should focus on addressing metro
politant and colonial Government, not DCs, chiefs......175

There is debate that the UN, US, the Soviet etc contributed to decolonisation and independence
in Kenya and Africa. America’s interest was mainly because colonial states like Britain were
securing undue economic advantage in terms of access to raw materials and markets in the
colonies. Relatedly, the US had had an experience with the desire and struggle for freedom,
related to America’s struggle for independence,176 and the civil rights movement.177

Independence was attained partly because it had become uneconomical to govern the empire. It
was particularly expensive to continue governing Kenya, a resistive people.

Constitutional historians agree that Mau Mau constituted to the difficulties and cost for the
British Government and settlers to continue ruling or exploiting Kenya. The lesson is that civil
disobedience, protests, boycotts and mass action can lead to the attainment of freedom.178

E.S. Atieno Odhiambo emphasizes numerous points, among them:

First, who were the main (not the only) protagonists in Mau Mau? The Mau Mau fighters and
their families and the British settelers…..179

Second, who were the main winners and main (not the nly) losers in the immediate aftermath of
Mau Mau? The main “winners” were the collaborators, including colonial chiefs, homeguards,
informers, religious leaders, …and their sons,180 daughters, grandchildren, son-in law, . This was
because they directly inherited the reigns of power. Second, the value and structure of
government had supported and needed their political ideology and orientation .......religious faith
as well as mission (and secular) education......181 Qualification for office would be based on
certificates from Alliance, Mang’u, Makerere, FortHare…and not matchetes or pangas or
experience in forests of Mt Kenya or the Aberdares…….182

Third, how many Mau Maus were there?183

174
Cf Steve M. Mutie, et al. (2015), “Jomo Kenyatta’s speeches and the construction of the identities of a nationalist
leader in Kenya,” 5:2 English and Literature Studies, Canadian Center of Science and Education.
175
Cf Chief’s Authority Act…..
176
177
Issues, actors, leadership years, collaborators....
178
Kenyan resistance in 1980s leading to saba saba (seventh of July) 1990. As JFK stated, “if you make peaceful
change impossible, you make violent change inevitable…” also see Eugene Kamenka, “Portable Karl Marx: ..”
179
180
For instance, during the emergency, some children of colonial chiefs were taken out of the theatre of conflict to
study at Forthare (Njonjo) or Makerere and LSE (Kibaki)…..
181
See Kipkorir on the influence of Alliance High School in Post independence economy....See the motif: Kipkorir:
Their “parents had seen far”….
182
….
183
cf. John Lonsdale (….) “Mau Maus of the mind…..”
27
Fourth, how has Mau Mau been used to entrench domination or hegemony in post independent
Kenya-what Ben Sihanya calls ethnic apartheid, ethnic colonialism, ethnic clones and cloning in
Kenya.184 To illustrate, upon the attainment of independence, the various ethnic groups in Kenya
found expression in the major political parties of the time with KANU representing the larger
ethnic blocs and KADU representing the minority ethnic groups.

While President Jomo Kenyatta was expected to promote national unity and cohesiveness, he
engaged in a consolidation of his political base with the Kikuyu elites in what was formerly the
Central Province and improving on the infrastructure network that had been developed by the
colonial administration. The subsequent President Daniel Moi did not help matters as he
reinforced and continued the trend by officially entrenching political patronage and ethnic
jingoism.185 This was evident in the pouring of funds and projects in his native Rift Valley
province and giving of plum jobs to Kalenjins.186

Kibaki and the Government re-enforced Mau Mau practice by entertaining Lemma Ayanu, an
Ethiopian peasant, as General Mathenge.187

Mau Mau compensation case was the product of a long quest. 188 Is it Mau Mau compensation or
British compensation to the tortured freedom fighters countrywide?

Can the Kenyan and British Governments facilitate the compensation of victims of forced labour
etc. The Constitution and transnational law recognize these rights, and the role of victims in
criminal and civil reparation processes. Moreover, can the British acknowledge and apologize for
these colonial injustices too?189

Can Mau Mau users and abusers accept that all Kenyan citizens deserve equity, equality, non
discrimination, non domination, non subordination and affirmative action, as appropriate? Can
President Kenyatta as President and as co-perpetrator and beneficiary apologize to non Kikuyu
Kenyans for the post independence and post colonial oppression, exploitation, inequity,
inequality, discrimination, domination and subordination?190

184
See ES Atieno Odhiambo (1995) “The formative years, 1945-55,” in B. A Ogot & W.R Ochieng (eds) (1995,
1996) Decolonisation and Independence in Kenya, 1940-93, James Currey, London, EAEP, Nairobi, & Ohio UP,
Athens; E. S. Atieno Odhiambo & John Lonsdale (eds) (2003) Mau Mau & Nationhood, Ohio University Press….
185
Githu Muigai (…) “Ethnicity and the Renewal of Competitive Politics in Kenya” in Harvey Glickman, ed., Ethnic
Conflict and Democratization in Africa (Atlanta: ASA Press, 1995) at p. 162………
186
Nelson Kasfir (….) “Elections in Kenya” Africa Demos, July & August 1993, at 11.
187
Ochieng, Ngugi et al…..focus on Kikuyu Mau Mau heroes who had some national statue or name recognition.
…..

188
David M. Anderson (2011) “Mau Mau in High Court and the ‘lost’ British Empire archives. Colonial conspiracy,
or bureaucratic bungle?” 39, Journal of Imperial & Commonwealth History, 699-716. Cf Kibaki and the
Government entertaining Lemma Ayanu as General Mathenge
189
Caroline Elkins (2005) Britain’s Gulag: The Brutal End of Empire in Kenya, Pimlico…..; David Anderson (2005)
Histories of the Hanged: The Dirty War in Kenya and the End of Empire, W. W. Norton….; B.A Ogot review of
both book and also in B.A. Ogot………
28
A section of the Mau Mau veterans have faulted the erection of the Mau Mau memorial statute at
Uhuru Garden’s, Nairobi. Cf- Gitu Kahengeri suggesting that the mau mau veterans be hosted in
the State House for a national celebration.191

I argue that Mau Mau is part of Kikuyu ethnic (neo)colonialism or ethnic capitalism (Ghai) and
ethnic aristocracy (Kagwanja).

There are incidents cases and incidents ethnic inequality, inequity discrimination and lack of
decent affirmative after independence: madharau,192

Cf. Micere Githae Mugo, “I took my son by the hand...”193; ESAO (2003) “Matunda ya Uhuru,
The fruits of independence”……194

I took my son by Micere Mugo.....

Towards sunset/ we set out
for home/ my son’s little/
warm hand/ inside mine
he in his world/ me in mine

Mother, he asked

Do we have/ matunda ya uhuru

in our hut?

I laughed foolishly

Mother!
Yes son

190
The TJRC Report recommended that an apology be made by the President on behald of the Government for all
historical injustices. KNCHR report on 2017 electoral violence launched on 27/11/2018 seeks President Kenyatta's
apology limited to the subject of the report……..
191
Moses Nyamori (2015) “Mau Mau memorial unveiled in Nairobi,” Standard Digital, Nairobi, 13/9/2015 at
http://www.standardmedia.co.ke/article/2000176118/mau-mau-memorial-monument-unveiled-in-nairobi?
articleID=2000176118&story_title=mau-mau-memorial-monument-unveiled-in-nairobi&pageNo=2 (accessed
21/9/2015)….
192
Fernandes v. Kericho Licensing Court…. Dodhia…. Madhwa v. City Council of Nairobi.....See also post 1970
cases for tribal inclusion and non discrimination against tribal hegemony (or domination) and surbordination.....
193
Micere Githae Mugo (1973) “I took my son by the hand,” in David Rubadiri (ed) (1989) Growing Up with
Poetry: An Anthology for Secondary Schools, Heinemann Educational Books Ltd, Oxford, at 77-78,
at http://innovativelawyering.com/blogs/94-i-took-my-son-by-the-hand. Also Jonathan Kariara and Ellen Kitonga
(eds) (1976)An Introduction to East African Poetry, OUP, Nairobi....Micere Mugo....My mother’s song and other
poems.......BS IPILKA 3. Poems, songs and music in Kenyan and African creativity, copyright, cultural politics,
political economy and constitutional democracy.....
194
ibid; ES Atieno Odhiambo (…) “Matunda ya Uhuru, Fruits of Independence: Seven Theses on Nationalism in
Kenya,” in ES Atieno Odhiambo & J. Lonsdale (eds) (2003) Mau Mau and Nationhood: Arms, Authority and
Narration, Ohio University Press, Athens, pp. 37-46, op. cit. …
29
 Do we have/ some?

Silence

May I eat one/ When we get there?

Move on son/ darkness is looming fast
around us.195

Jagjit Singh must have also been lamenting about Kenya in his powerful poem, “Portrait of the
Asian as an East African.” Singh uses Asian African male persona who laments bout a changing
Africa of the 1960s at the beginning of self-rule in post-independent Africa.196

The persona laments;/ farewell my dear beloved illusions,

for I, too, would have liked to think
only the toes of Africa were infected197
but the cancer of colour/has gathered fresh victims now.

black surgeons, too, have prescribed new drugs198/ and we,

malignant cells,/ must fade away soon.

let me not see you now,/ ancestral spirits of my race,

in the posture of lawino,199/ lamenting sweetness that has turned sour,
for it shall be my western mind alone/ that must summon up an excuse
for the brownness of our sins.

and soon we shall be flying,/ unwelcome vultures all over the world,
only to unsheathe fresh wrath/ each time we land

we are the green leaves/ that must sprout no more,

for the roots have thrived/ on black silence
and false kindness of the white race.
195
Micere Githae Mugo (1973) “I took my son by the Hand,” in David Rubadiri (ed) (1989) Growing Up with
Poetry: An Anthology for Secondary Schools, African writers series, Heinemann Educational Books Ltd, Oxford,
London at 77-78.
196
Jagjit Singh (…) “Portrait of the Asian as an East African,” in David Cook & David Rubadiri (eds) (1996) Poems
from East Africa, East African Educational Publishers, Nairobi, 156-159. Revewiwed in Austin L.S
Bukenya.....Notes on EA Poetry, HEB, EAEP, Nairobi...BS IP and Innovation Law in Kenya and Africa: Poems,
songs and music and democracy, liberty, copyright and in Kenya and Africa IPILKA 3. Discuss under conquest
state and colonisation...:How Asians came to Kenya, Uganda, South Africa etc......
197
Referring to Okot Okoit p’ Bitek’s Song of Lawino which a traditional African wife (Lawino) laments being
ignored who prefers Western values and clementine.....See Okoit P’ Bitek......Song of Lawino and Song of Ocol
198
Asians had been discriminated against during white British colonisaltion. The Government of Kenyatta (1963-78)
and Idi Amin oppressed and exploited some of them…..
199
Referring to Okoit p’Bitek, Song of Lawino..
30
 waste no ceremony/ for the unintentionally corrupted;
lead the ram to altar/ and wash away the sins of history

2.18 Western influence and involvement in post-independence Kenya

Historians like Charles Hornsby have argued that Western influence played a major role in
founding of the Kenyan state.200 He contends that the large foreign investments and foreign
citizens living in Kenya at independence acted as stabilising forces, both for good and ill.

When Lonrho(reportedly) took over the ownership of East African Standard and the Tanzania
Standard, Kenyatta was unhappy because its sources of wealth were based in white-ruled
Rhodesia. Kenyatta latter gave in. The talk was that Ronald “Tiny” Rowland said to Kenyatta
“The paper is yours to do what you like with, just say the word.” 201 Kenyatta nominated Udi
Gecaga, a family member to Lonrho Board.202

The contributions by the British finance, military support and advice actively contributed to the
establishment and survival of the Kenyatta Government after independence. Foreign aid
sustained Kenya’s economy since independence.

This, according to Hornsby, provided a buffer for the errors of its leadership and a safety net that
was guaranteed by Kenya’s pro-Western orientation. This pro-Western orientation has since
changed especially in the current Kenyan political leadership of Kenyatta II (K+). 203What has
been driving Kenya’s foreign policy including diplomatic relations in EAC, AU, with the West
in 2013 and 2014? Was it ICC and personal or ethnic interests? 204

2.19 Kenya: Post-colonial or neo-colonial state?

Is Kenya independent? dependent? interdependent? post-colonial? neo-colonial? Relate to the
key questions: social, economic, political, technological and to the four presidencies…. 205

200
Charles Hornsby (2012) Kenya: A History since independence, I.B. Taurus & Co Ltd, 6…..
201
The Editor, “The early battles between editors and publicity- hungry politicians,” Daily Nation, Nairobi, March
22, 2010 at
202
As a Director….. Udi Gecaga is the father of Jomo Gecaga, and also the ex-husband of President Uhuru
Kenyatta’s elder sister Jeni Wambui. Bethwel Mareka (BM) Gecaga, , was the father-in-law to Jeni Wambui
Kenyatta……and was appointed to key state corporations….
203
Starting from the Kibaki government, Kenya has started focusing on the East. Cf the Kenya-China multi-billion
deal, the Railway tender etc. What are the constitutional and economic implications or impacts? See
http://www.innovativelawyering.com/blogs/88-prof-ben-sihanya-on-the-kenya-china-multi-billion-deal (accessed
4/6/2014). See also Timothy Kaberia (2014) “Uhuru’s response sign of desperation,” The Star, 27/5/2014 at
http://www.the-star.co.ke/news/article-168686/uhurus-response-sign-desperation (accessed 4/6/2014).
204
Chapter 14 on conceptualization, problematisation and contextualization of Kenya African policy since 1963.
Cite Bonaya Godana Katiba collections; Andy Adede, Katiba Collections, JB Ojwang and Luis Francheschi, FD
Situma Foreign policy, international relations.........
205
Cf. Discussion of Constitution and State in chapter 1.
31
Some scholars have argued that Kenya is a neo-colonial state; that is, it has attained formal
independence but is essentially still dominated in the political, economic, cultural, social, and
other spheres by the ex-colonial power or by other states206 like USA, China and other Eur

Kenya’s “post colonial” means that there was once a colonial power or historical connection
between colonialism and the current state of affairs. Immediately after independence, the
political elite in Kenya African National Union (KANU) led by Jomo Kenyatta dismantled the
Independence Constitution in order to implement the Kenyatta-Mboya-Nyerere theory of a
unitary state and a singular executive authority.207

What did 50 years of independence celebrations mean to most Kenyans? 208What do the annual
celebration of Madaraka, Mashujaa and Jamhuri days mean?209

There is an argument that Mau Mau survivors have been compensated by the British (on a
without prejudice basis). Who will compensate Kenyans who have suffered assassinations,
massacres, ethnic hegemony and other forms of ethnic apartheid since independence? When will
the freedom and compensation come?

Kenya inherited from the colonialists a political structure with a strong executive branch at the
expense of other democratic institutions. The two leading nationalist parties (KANU and KADU)
for instance were largely loose amalgamations of ethnically homogeneous, district-based
political associations under the leadership of local power barons. 210 Kenyatta, who had been in
prison, did not participate in the establishment of such parties; this made it difficult for him to
control the parties.211 This prompted him to resort to the bureaucracy of Provincial
Administration. Through this he could exercise direct control.

Also define and conceptualise bureaucratic state, prebendal state (Richard Joseph who focuses
on compatrative constitutional politics of Nigeria); authoritarian or totalitarian state; rent seeking
state; patrimonial state Oon the foregoing see the methodology on conceptualization of the
Constitution, state and government, law and development class 4 These only define certain
aspects of facets of the state under the generic, Ghaian and Sihanya reconceptualisation or
synthesis of constitution, state and government.

206
Colin Leys (1975) Underdevelopment in Kenya: The Political Economy of Neocolonialism, 1964-1971,
University of California Press, Berkeley (pp. 1-27).
207
Githu Muigai (2001) Constitutional Amendment and the Constitutional Amendment process in Kenya 1964-
1992: A Study in the Politics of the Constitution, PhD Thesis, University of Nairobi; Githu Muigai, on dismantling
of the Kenya Constitution during Bomas, newspaper article.
208
John Kamau (2013) “50 years on, Uhuru confronts the same mountains his father faced,” Daily Nation,
31/3/2014, at http://www.nation.co.ke/news/50-years-on-Uhuru-confronts-the-same-mountains-his-father-faced/-/
1056/2333546/-/qu7rr9z/-/index.html (accessed 3/6/2014).
209
In 2018, Moi Day was celebrated again without presidential or state ceremony. This was based on High Court
Justice George V. Odunga’s decision in Republic v. Cabinet Secretary for Internal Security ex parte Gragory
Oriaro Nyauchi & 4 Others Judicial Review 292 of 2017 [2017] eKLR…..
210
Siegmar Schmidt, Gichira Kibara (2002) Kenya on the Path Toward Democracy?: An Interim Evaluation : a
Qualitative Assessment of Political Developments in Kenya Between 1990 and June 2002,Konrad-Adenauer-
Stiftung,Nairobi (p5).
211
Ibid at 5.
32
Patrimonialism through patronage became the new order of business with the state becoming the
single most important dispenser of national resources, rendering state control the primary means
of acquiring wealth.212 The role of political parties in democratization was rendered irrelevant
with the dissolution of KADU in 1964.

Kenyatta instigated numerous constitutional amendments that gave him sweeping executive
powers.213 Under KANU dictatorship and leadership under Moi 1978-2002...214 Moi in his quest
to consolidate power revitalized KANU through mandatory life membership for all MPs and
senior civil servants, establishing a powerful party disciplinary committee and through the
party’s invasion of electoral processes by introducing mlolongo or queue voting.215

2.20 National and transnational obligations after independence in Kenya, Uganda, Nigeria,
South Africa, and Africa
One of the major incidents of independence was that Kenya became a sovereign state. 216 In 1964
it became a sovereign republic with power to control its destiny internally and in external
relations.

The challenges in the neo- or post-colony include meeting national obligations as well as
international responsibility.217 National obligations include protecting life, people and property
within the territory. These include securing equity and reducing or eliminating discrimination,
hegemony or preference based on ethnicity, regions, religion, gender or class. International
obligations include settling debts, implementing treaties entered into (by the state or former
colonial power), state succession, meeting human rights and environmental standards.

Provided that Kenya does not have a very clear and explicit foreign policy. In the Cold War era it
argued that its policy was non-alignment (and good neighborliness – or non interference). Since
independence Kenya has joined some supra-national bodies to consolidate its role as a member
of the international community. These include the UN, Commonwealth, AU, IGAD, COMESA
and EAC. These qualify Kenya’s state sovereignty given that by virtue of the Constitution,
international instruments that Kenya ratifies bind the country to meet the obligations arising
therefrom.. cf Article 2 (5) and 2(6) of the Constitution

212
Ibid at 5.
213
Siegmar Schmidt, Gichira Kibara (2002) Kenya on the Path Toward Democracy?: An Interim Evaluation : a
Qualitative Assessment of Political Developments in Kenya Between 1990 and June 2002,Konrad-Adenauer-
Stiftung, Nairobi, at 6……
214
Cf “Two cheers to colonialism” by the discredited author and (convicted) felon, Dinesh D Souza).
215
Godwin R. Murunga, Shadrack W. Nasong'o (2007), Kenya: The Struggle for Democracy, Zed Books Ltd
London, at 278….
216
Cf popular sovereignty (arts 4,(1): “Kenya is a sovereign Republic….” 1) and state sovereignty (art 3) cf 1963,
1969 Constitutions. UN Charter 1945 , AU Charte….Constitutive Act of 11/7/2000……..r...
217
H.W.O. Okoth-Ogendo (1974) “National implementation of international responsibility: some thoughts on human
rights in Africa,” 10 East African Law Journal 1; Jackton B. Ojwang (1990) Constitutional Development in Kenya:
Institutional Adaptation and Social Change, African Centre for Technology Studies (ACTS), Nairobi; JB Ojwanng
& Luis G. Franceschi (2002) “Constitutional regulation of the foreign affairs powers in Kenya: A comparative
assessment,” 46 J. African Law 43.
33
The national basis of foreign policy. What is Kenya’s foreign policy? Generic (cf USA; Nigeria,
South Africa, Egypt, Ghana… ..Is Kenya’s foreign policy explicit? Implicit? 218 Kenya’s foreign
policy is guided and driven by a vision of “a peaceful prosperous and globally competitive
Kenya” with the mission to protect, promote and protect Kenya’s interests and image globally
through innovative diplomacy, and contribute towards just, peaceful and equitable world….219

Arguably, Kenya’s foreign policy takes a dependent approach mainly influenced by foreign
capital inflows. Notably, whatever constitutes Kenya’s foreign policy is the preserve of the
President in power, with the Ministry of Foreign Affairs simply being the facilitative and
coordinating arm of the President’s policy. Though Kenya’s foreign policy has been regularly
touted to include principles such as non-alignment and non-interference by external powers as
well as sovereignty, its policy is frequently dictated by economic interests and the need to have
more of foreign capital. Cf. the China-US relations…..

2.21 Constitutionally important dates in Kenya

Precolonial Kenya: 1500-1895? 1920?

Early travelers, visitors, explorers, discoverers, sailors, 220 traders,221 fortune seekers,
missionaries,222 colonial anthropologists,223 colonial administrators.224

1920 - Kenya becomes a colony

1921 – Harry Thuku forms the Young Kikuyu Association which later draws a petition
containing grievances on labour, land and Kipande, which Africans had to carry.

March, 1922 - Harry Thuku is arrested and M.A Desai, President of the Indian Congress is
accused by the European press of instigating Harry Thuku.

September 1922 - Kamau wa Ngengi (later Johnstone Kamau and thereafter Jomo Kenyatta)
becomes a member of the Committee of the East African Association. (EAA)

1924 - Harry Thuku stands his position that only elected Africans can genuinely represent
African interests.

1928 - Jomo Kenyatta starts the Kikuyu paper, Mwigwithania (The Reconciler)

218
Laws on citizenship, non-citizens, asylum, diplomatic and consular relations. Cf • Justice JB Ojwang & L.G.
Franceschi (2002) 46, 1, “The Constitutional Regulation of the Foreign Affairs Power: A Comparative Assessment”,
Journal of African Law, Oxford, 43–58….Adra Korwa…..Oyugi (ed)…….cf Macaharia Munene…ESAO on
Munene……..
219
220
The periphis of the Erythrean Sea. Cf early writers in Nigeria, South Africa..
221
Tippu Tip.
222
See ESAO etc.
223
ESAO, HWO……
224
Cf HWO……. Berman & Lonsdale………
34
1929 - Jomo Kenyatta departs for England to make personal representation about grievances of
the Kikuyu.

1931 - Harry Thuku is released from detention.

1934 - Kenya Land commission report closes the frontier between the European Highlands and
the African Land units. Africans are denied any rights in the White Highlands.

North Kavirondo Central Association is formed.

1935 - Harry Thuku breaks from Kikuyu Central Association (KCA) and forms Kikuyu
Provincial Association.

12/11/1937 - The Secretary of State for Colonies, Mr Ormsby-Gore, reaffirms that the White
Highlands in Kenya are exclusively for Europeans and that Africans and Asians cannot acquire
land there.

1938 - Jomo Kenyatta publishes his first book, Facing Mount Kenya.
Ukamba Members Association is formed.
The Akamba people march to Nairobi to protest against the Government policy of de-stocking
and their leader, Samuel Muindi wa Mbingu is deported to Lamu.

1940 - Kikuyu Central Association, the Ukamba Members Association (UMA), and the Taita
Hills Association are banned and their leaders arrested.

1944 - Eliud Mathu is nominated the first African member of the LegCo. Kenya African Study
Union is formed.

1946- Kenya African Study Union drops the word study from its name to become Kenya African
Union (KAU).

1947 - Makhan Singh and Chege Kiobachia lead the first strike by African workers in Nairobi.

KAU president Mr. James Gichuru steps down to make way for Jomo Kenyatta to become KAU
president.
The number of African members to LegCo is raised to four.
Kipande system is abolished and replaced by an identity card system. Who else?

1948 - Kenya, Uganda and Tanganyika form the East African commission.
Mau Mau freedom fight begins

1949 - Makhan Singh and Fred Kubai form East African Trade Union Congress in Nairobi to
fight for the rights of African workers.

35
1950 - KAU and The Kenya Indian Congress hold public meeting at Kaloleni Hall in Nairobi.
Trade unionist Makhan Singh’s resolution demanding for independence for Est Africa is carried.

Mau Mau is declared an illegal society.

Makhan Singh is tried by the High Court and detained as “an undesirable British subject”

20/10 1952 - The Governor, Sir Evelyn Baring declares a state of emergency. This followed the
killing of a loyalist Kikuyu chief, Waruhiu by Mau Mau freedom fighters.

The ‘Kapenguria Six’ are arrested by the colonial security forces

26/01/1953 - The Kapenguria trial begins

8/4/1953 - The Kapenguria six-Jomo Kenyatta and fellow freedom fighters, Fred Kubai, Achieng
Oneko, Paul Ngei, Bildad Kaggia and Kung’u Karumba are found guity and sentenced to seven
years in prison with, hard labour.

1954 - A prominent Mau Mau leader ‘General China’ Waruhiu Itote is captured by Colonial
Government forces and imprisoned at Lokitaung.

April 1954 - Colonial Government mounts “Operation Anvil” against Mau Mau elements in
Nairobi and arrests 27,000 Kikuyu who are put into detention camps

3/9/1954 - Field Marshal Olekisiso, the leader and organiser of Mau Mau in the Rotin division of
Maasailand and second-in-command to Dedan Kimathi since the arrest of General China, is
killed in an ambush in Narok.

1956 - “Field Marshall” Dedan Kimathi of Mau Mau forces is shot at, wounded and captured.

The trial of Dedan Kimathi begins before the Supreme Court.

1957 - Dedan Kimathi, the Mau Mau leader, is hanged at Kamiti Prison aged 34.

The state of emergency ends

March 1957 - Elections for eight African Members of LegCo are held for the first time.

1958 - Mr Oginga Odinga asks questions in the LegCo about Mzee Jomo Kenyatta in prison.

Demands for a constitutional conference and release of Mzee Jomo Kenyatta are made

1959 - There are now twenty-five African members, fifteen Asians, five Arab and forty six
Europeans in the LegCo representation.
Pan African Movement of East and Central Africa (PAFCSA) is founded. Take on how members
grew for the races absoluty LegCo size.......
36
March 1959 - Nairobi People’s Convention Party is formed and “Release Kenyatta” campaign
launched.225

14/4/1959 - Mzee Kenyatta and his companions complete three-quarters of their sentence of
imprisonment and become eligible for release.

A restriction order is immediately applied and Mzee Kenyatta is detained at Maralal.

12/01/1960 - The state of emergency and the emergency regulations declared in 1952 ends after
7 years of war against Mau Mau.

18/01/1960 - Kenya constitutional conference starts at Lancaster House in London.

Mr Macleod, Secretary of state for the colonies, refuses to admit Mr. P.M. Koinange as a second
special adviser to African delegation.
The African elected members led by Mr. Ronald Ngala and Mr. Tom Mboya boycott the
Lancaster conference. Date?

25/01/1960 - Kenya constitutional conference at Lancaster House ends and there is full
attendance at the talks.

March 1960 - Kenya African National Union (KANU) is formed.

14/5/1960 - Mzee Jomo Kenyatta who is still in prison is elected, in absentia, President of the
newly formed party, KANU, while Mr. James Gichuru is elected acting president until Kenyatta
is released.

14/03/1961 - KADU Cabinet ministers Mr. Ronald Ngala and Mr. Taitta Towett, protest against
Governor Patrick Renison’s refusal to release Mzee Jomo Kenyatta. See also 1958 Oginga
Odinga’s struggle to have Kenyatta released and restored into civil society; and Mboya’s
campaign in March 1959 above.

12/07/1961 - Mr J. D. Shah, a member of the Legislative Council, criticises the existence of the
European and Asian hospital authorities and calls for abolition of racial segregation in schools.

Jomo Kenyatta criticises KADU’s majimbo policy in his first speech since becoming KANU
president.

24/11/1961 - Mr Reginald Maulding, the British colonial secretary, arrives in Kenya to hold talks
with Kanu and KADU officials on the formation of a coalition government.

225
OO and is “restored Kenyatta to civil society” from a pariah status: and tell over each other in the
process…..Kenyatta …Uhuru na Kenyatta….Cf Kiano etc “we are the leaders of the people….”.....to what effect?
Kenyatta as reconcile, Muigwi thania..again? Nyong’o (…) Sate and society in Kenya, 1963-78: The disintegration
of the nationalist coalitions and presisential and authoritarianism….
37
12/01/1962 - Mzee Jomo Kenyatta is elected unopposed in a by-election after Mr. Kariuki Njiri
Legco member for Fort Hall, vacates his seat for him.

14/02/1962 - The Lancaster House Constitutional Conference in London starts with KANU
President Jomo Kenyatta demanding in his opening speech that the conference must name a date
for Kenya’s full independence.

5/03/1962 - The Kenya constitutional conference in London starts a detailed examination of the
Majimbo (regionalism) proposals of the KADU.

2/4/1962 - Colonial Secretary Reginald Maudling presents Kenyan political leaders with his final
23-point draft framework for Kenya’s constitution in London and gives them 48 hours to make
up their minds about it.

5/4/1962 - KANU and KADU form a coalition government.

18/06/1962 - Mr. Bildad Kaggia, the chairman of KANU’s Naivasha Sub-branch, criticises Mr.
Bruce Mackenzie’s proposal to settle 2,000 Kikuyu families in Tanganyika, describing the move
as indirect deportation.

19/11/1962 - Mr Paul Ngei threatens to leave KANU with his 750,000 Kamba supporters and
form a new party following a disagreement with party officials.

2.23 Independent Kenya 1963-2017-19

Major events, processes, actors, dates, constitutional provisions and quotes...Kenya,

Nigeria, South Africa,, Uganda.......

1/6/1963 – internal self-government; Kenya’s sovereign authority is qualified. British monarchy

still controls international affairs.

12/12/1963 – independence; much greater authority to determine destiny. However, it is still

technically a dominion of the UK. Between 12/12/1963 and 12/12/1964 Kenya is technically a
monarchical state. There’s a Prime Minister (Jomo Kenyatta) who exercises some executive or
efficient powers. The Governor-General (Malcom MacDonald) exercises ceremonial powers on
behalf of the Queen Elizabeth. PM nominates while Governor-General appoints the cabinet.

12/12/1964 – Kenya becomes a sovereign republic in terms of the Constitution. Post of

Governor-General is abolished. President is head of government and head of state. See ss. 1, 1A,
23, 24, etc of the Constitution of Kenya, and Arts. 1, 2, 3, and 4 of the Draft Constitution of
Kenya 2004. Constitution of Kenya 2010: referendum 4/8/2010; promulgation 27/8/2010….

Edit, review.

38
Post- 2010 calls for a referendum by CORD and the Council of Governors.226

Also consider the following dates: 1966, 1969, 1972, 1975, 1982, 1991, 1992, 1997, 2002, 2007,
2008, 2010, 2012, 2013, 2014, 2015 (5 years since promulgation; milestones to review; CIC to
hand over-why? to who? KLRC? prospects? KLRC is within A-Gs; implementation;
referendum?)….227

1966- A left-wing faction of KANU led by Oginga Odinga and Bildad Kaggia defected from
KANU and formed the Kenya People’s Union (KPU)

1969 – The first single-party elections in Independent Kenya were held with KANU as the sole
party. Tom Mboya assassinated and Oginga Odinga was arrested and KPU leader
deteained .KPU Banned

1975 – The killing of charismatic politician JM Kariuki.

1982 – There was an unsuccessful coup against President Moi which led to a more autocratic
regime. KANU officially declared Kenya a one-party state.

1991 – The Forum for Restoration of Democracy (FORD) is formed then banned and Oginga is
arrested once again. There was a repealing of section 2A that created room for multi-party
elections.

1992 – The first multiparty elections in Kenya were held with Moi winning the Presidency.

1997 – The second multiparty elections were held and there was the introduction of the Inter-
Parliamentary Party Group (IPPG).

2002 – NARC coalition under Mwai Kibaki’s DP with the support of LDP led by Raila Odinga
triumphed over KANU’s candidate Uhuru Kenyatta, considered a Moi project, marking the end
of Nyayoism.

2007 – Kenya conducted elections which led to post-election violence after claims of electoral
fraud.

2008-Kenya formed a new coalition government with President Kibaki and Prime Minister Raila
Odinga after post-election violence following the amendment to the Constitution creating the
premier office.

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Standard Digital News (2015) “What the launch of Okoa Kenya says about our democracy at:
http://www.standardmedia.co.ke/article/2000159532/what-the-launch-of-okoa-kenya-says-about-our-democracy
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e g major transitional elections under the Constitution of Kenya 2010; Supreme Court’s controversial decision on
Raila Odinga; Peter Munya, Mary Wambui; ICC trials; contest on implementation of the Constitution e.g.
devolution, colonialism and ethnic chauvinism in government appointments, CORD’s request for a national dialogue
on the current crises; threats to governors; referendum etc..
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2010-Kenya adopted or promulgated the new constitution 2010.

2012-The International Criminal Court (ICC) indicts 6 Kenyans for crimes against humanity
following the 2007-2008 post-election violence. Britain acknowledges the torture of Mau Mau
veterans by its colonial government.

2013 – Uhuru Kenyatta wins a disputed election in the first elections under the new Constitution
2010. Raila Odinga contests the decision in the Supreme Court which confirms Kenyatta as the
validly elected President.

2014 – The ICC prosecution drops charges against Uhuru Kenyatta citing insufficient evidence.

2015 – Fifth year of the implementation of the Constitution and call for a referendum by the
Council of Governors;

2016 – ICC charges against William Ruto dropped. ICC judges describe the trial process as
tainted by witness interference and political meddling hence a weakened prosecution case.

Kenyatta’s (K1) administration is in crisis: lawlessness, paralysis, gridlock, dysfunctional;

teachers strike, disobeying court orders to pay teachers, closes schools; insecurity; high cost of
leaving; Kenya shilling loses big against world major currencies; Kikuyuism in government-
excluding other tribes; Kikuyu ethnic arrogance and impunity by Moses Kuria, Ngunyi
encouraged and suffered; corruption and favourism by punishing some, suspending and shielding
Waiguru and shielding ethnic affiliates e.g. on NYS lose of at least KES 791 million.

Police brutality sanctioned by the Jubilee government; reckless shooting of opposition supporters
during anti-IEBC protests. No police officers prosecuted for the selected killings; armed militia
reemerging? Mungiki? Ethnic cleansing- cf Kimani Ngunjiri calling on Luos to leave Nakuru.
Debate on hate speech….

2017: Second General Elections under the 2010 Constitution; Supreme Court nullifies
presidential elections; protracted electoral and political crisis.

October 26 resistance.

2018 handshake or rapproachment between Raila Odinga of NASA and Kenyatta of Jubilee
Party

2019: Demolition of buildings on riparian land

2019: Lifestyle audit announced by Kenyatta not fully implemented....

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Anticorruption....prosecutions targeting those not affiliated to Kenyatta: untouched or
manipulated include Managed Equipment Scheme (MES)….at least 38B, without
contracts…..expensive, unnecessary health equipment..Mafya tender…..NYS 1, NYS 2……

Muder of Sharon Otieno, Monica Kimani, Maribe and Mr Irungu charged, both had been close to
Jubilee leadership, Migori Governor Okoth Obado charged.....One third gender formular,
principle, and rule in parliament again

10/10/2019 Gazzetted as a public holiday following a High Court Judgment that reinstated it in
2017.

Handshake, constitutional amendment…… and 2022 Kenyatta succession in focus.

...the discourse continues in class, articles, books, online, in the blogosphere, social media, and
appropriate fora…
© Prof Ben Sihanya, JSD (Stanford), Revised 27/2/2013; 26/9/2013; 14/6/2014; 14/10/14;
16/02/15; 16/06/15; 31/08/2015; 10/2/2016; 29/6/2016; 14/4/17; 10/4/2018; 8/2/2019; 1/3/2019;
28/6; 4/7; 17/10; 18/10
email: [email protected]; [email protected] (use both)
url: www.innovativelawyering.com
Happy mashujja day reding, resting and reflecting.

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