The journey for demanding constitutional reforms began in the early 1990s, during the struggle for multiparty democracy.
Civil society groups, religious leaders, and opposition politicians pushed for constitutional change to limit presidential powers and expand democratic space.
In 2000, President Daniel Arap Moi’s government set up the Constitution of Kenya Review Commission (CKRC), chaired by Prof. Yash Pal Ghai. This commission was tasked with collecting views from Kenyans and drafting a new constitution. So, by the time Moi was leaving office in 2002, the review process was already underway.
When Mwai Kibaki took over in December 2002, his government pledged to deliver a new constitution within 100 days. Kibaki inherited the Commission set up by Moi’s government and continued working with it.
The Commission consisted of about 25 commissioners appointed to reflect diverse political, regional, professional, and social interests.
Kibaki Inherits Commission Set up by Moi to Draft New Constitution
They included members from political parties, both the ruling KANU and the opposition, as well as representatives from civil society organizations and non-governmental bodies. Religious groups were also represented, with voices from the Christian, Muslim, and Hindu communities. In addition, the commission brought on board professionals such as lawyers, academics, and trade unionists.
Additionally, the process also gave space to marginalized groups, including women, youth, persons with disabilities, and pastoralist communities.
Notable people who were in the Commission included Phoebe Asiyo, Prof. Ahmed I. Salim, Dr. Mohamed Swazuri, Keriako Tobiko, and Kavetsa Adagala.
However, disputes emerged during the drafting of the new constitution. Kibaki’s National Rainbow Coalition (NARC) had promised to adopt a new constitution that would reduce the immense powers of the presidency, a key demand of his coalition partner, the Liberal Democratic Party (LDP), which was Raila Odinga’s faction.
After taking office, however, Kibaki’s allies drafted a version that largely preserved the centralized power of the executive, which Odinga’s faction regarded as betraying the original intent.
Kenyans Oppose Kibaki’s Wako Draft
The Constitution of Kenya Review Commission, a body tasked with creating a new constitution, produced the Bomas Draft in 2004, which recommended a semi-parliamentary system with a powerful prime minister. The government, after walking out of the Bomas conference, produced the alternative “Wako Draft,” which was widely seen as retaining excessive presidential powers.
Kibaki’s government walked out of the Bomas Conference because it opposed provisions that weakened presidential powers in favor of a parliamentary system.
The disagreement over the drafts led to sharper divisions within Kibaki’s ruling coalition. The LDP faction, led by Raila Odinga, insisted on the Bomas Draft, while Kibaki’s faction supported the Wako Draft.
The referendum on the Wako Draft was seen as a battle between two sides. Kibaki’s team supported it with a “Yes” vote, represented by a banana, while Odinga’s team opposed it with a “No” vote, symbolized by an orange. The “No” side won by a large margin, which led Kibaki to dismiss his entire cabinet.
After the disputed 2007 presidential election, violence erupted across the country, leaving over 1,000 people dead and displacing hundreds of thousands.
To end the crisis, Mwai Kibaki, who was declared President, and Raila Odinga, the main challenger, entered into negotiations mediated by Kofi Annan and the Panel of Eminent African Personalities.
These talks produced the National Accord and Reconciliation Act (February 2008), which created a grand coalition government. Kibaki remained President, while Raila became Prime Minister.
As part of the agreement, they identified a new constitution as a key priority to address the root causes of conflict, especially issues of executive power, land, inequality, and exclusion.
A new process was set in motion through the Committee of Experts on Constitutional Review (CoE) established in 2008. This group was created to be more focused on expert opinions and less on politics, unlike the Bomas and Wako processes. However, it still included input from the public.
The team was composed of both Kenyan and non-Kenyan experts to ensure a balance of local knowledge and international perspective.
From Kenya, the chairperson was Nzamba Kitonga, with Atsango Chesoni serving as vice-chairperson. Other Kenyan members included Njoki Ndung’u, Otiende Amollo, Abdirashid Hussein, and Bobby Mkangi.
Kibaki and Raila Lead Kenyans in Adopting the New Constitution
The non-Kenyan members included: Dr. Chaloka Beyani from Zambia, Prof. Christina Murray from South Africa, and Dr. Frederick Ssempebwa from Uganda.
In addition, some ex officio members supported the process. Dr. Ekuru Aukot served as the director of the CoE, while the Attorney-General, in line with the Constitution of Kenya Review Act, also sat as an ex officio member.
The Committee of Experts (CoE) worked on harmonizing the earlier drafts, including the Bomas and Wako proposals, and eventually produced a new draft that was opened up for public debate, reviewed by Parliament, and later presented to Kenyans in the 2010 referendum.
Also Read: Today in History: When a US Catholic Priest Who Had Lived in Kenya for Over 36 Years Was Found Dead
Along the way, political differences arose. President Mwai Kibaki and Prime Minister Raila Odinga strongly supported the creation of 47 devolved counties, while others, such as lawyer Miguna Miguna, pushed for a parliamentary system combined with a federal structure of fewer, larger regional states. Despite these disagreements, compromises were reached, and a final draft was prepared.
This version was overwhelmingly endorsed by Kenyans in the August 2010 referendum, where 67% voted in favor of the new constitution, giving the country its long-awaited new constitution.
Follow our WhatsApp Channel and X Account for real-time news updates.
