The era when the LSK paid for its colonial sins
By Gilbert Munyumbu
Understanding how the LSK attempted to restrain the Jomo Kenyatta regime from its excesses requires clarity in two main areas. First, we need to understand the general state of rule of law under the Kenyatta rule, and second, we must interrogate the Kenyatta government’s attitude towards systematic oversight and restraint, which come through both horizontal and vertical accountability, by tracing the relationship the government built with institutions emerging out of these two types of accountability.
The interaction with the LSK itself would need to be relayed in three phases: first, the interaction between the LSK and the Kenyatta regime in the early days of independence; second, the interaction when the regime took a turn towards a highly centralised presidency after the departure of Jaramogi and the assassination of Mboya; and third, the interaction towards the end of the Kenyatta era.
If respect for a country’s Constitution is a measure of its government’s fidelity to the rule of law, then the Kenyatta regime began on a shaky footing. The regime came into power under the Independence Constitution ratified during the third Lancaster Conference in 1963. Upon ascending into power, however, it embarked on dismantling this Constitution. It did this in phases, with the first decisive phase of amendments targeting the Majimbo (federal) provisions, which the administration replaced with a centralized administration in which the Provincial Administration and ministries directly answerable to Jomo Kenyatta were the ones to deliver public goods and services, rather than regional governments. A significant amendment was The July 1966 amendment. It gave the Minister for Home Affairs powers to detain individuals without trial in order to deal with the political opposition that emerged in the aftermath of the falling out between Jomo Kenyatta and Jaramogi Oginga Odinga. The overall justification provided for the constitutional amendments under the regime was the need to build a stable and united country.
There is, nevertheless, at least one proposed amendment to the Constitution that the regime declined. This was the provision on the automatic replacement of the President by the Vice President in case of the President’s indisposition, which had been pushed by a certain section of politicians associated with the GEMA movement.
Besides amending the Constitution, there existed at least two other arenas where violation of rule of law was most blatantly exhibited under the regime. These were political assassinations and in dealing with official corruption. Granted, assassinations did not commence under the Kenyatta administration, since prior to independence, Senior Chief Waruhiu, and the two KAU officials, Tom Mbotela and Ambrose Ofafa, had been assassinated by suspected Mau Mau agents. The regime, however, had its fair share of victims of assassinations in Pio Gama Pinto, Tom Mboya and JM Kariuki, among many others.
For official corruption, when the Kenyatta regime came into power, there already existed The Prevention of Corruption Act of 1956. Although it was strengthened further in 1967, this law was still unable to prevent widespread corruption by regime functionaries.
Overall, the relationship between the Kenyatta regime and accountability was marked by a distinct style. In the first major crisis that it faced in the aftermath of Mboya’s assassination in 1969, the regime turned to ethnic mobilization through oathing meant to bind the GEMA tribes to it. With the murder of JM Kariuki in 1975, it embarked on a campaign of disinformation, extracted pledges of loyalty from cabinet ministers and publicly displayed its military power. In the aftermath of the October 1969 massacre of residents of Kisumu, the regime downplayed the incident by underreporting casualty figures, blaming the incident on the Opposition and destroying photographic and video evidence of the incident. It should be granted, nonetheless, that in the aftermath of Ronald Ngala’s death in February 1973, the regime staged a public inquest into the death, thus making the death uncharacteristically transparent.
In terms of the relationship with systematic accountability, the Kenyatta regime foisted a subservient relationship on institutions of accountability, both horizontal and vertical. Under horizontal accountability, the Judiciary, Parliament and the political opposition were all subverted to the regime’s interests. The Judiciary, for instance, witnessed the regime’s wrath in 1968, when then Chief Justice, Justice Farrell, sitting with Justice Dalton as an appellate court reduced to six months the one-year sentence which had been handed to KPU Vice President Bildad Kaggia. Following this ruling, Jomo Kenyatta replaced the Chief Justice with the Solicitor-General, Kitili Mwendwa.
As for Parliament, the regime transformed it in two main ways. First, it reduced the bi-cameral Parliament it inherited at independence into a unicameral House. Secondly, it merged with the Opposition KADU, thus transforming Parliament into a single party House. Undermined in this way, Parliament became attuned more to agreeing with the Executive, rather than providing oversight. There were flashes of confrontation between the two arms, for instance in the aftermath of the JM Kariuki assassination. These were, however, rare and did not result in any sanctions on the Executive. Furthermore, the Kenyatta regime directly violated parliamentary immunity, arresting and detaining at least three members – Martin Shikuku, Jean Marie Seroney and George Anyona – for their utterances and activities on the floor of the House.
For the political opposition, the Kenyatta regime used at least five strategies to subvert accountability. First was the use of direct violence against the Opposition, as was witnessed initially against the Northern Frontier District (NFD) agitators who had declared intention to secede from Kenya, and later against the KPU. The second strategy involved changing and/or adjusting the law to suppress the Opposition. This was witnessed mostly after the formation of KPU. With KPU threatening to turn into a mass party through the defection of at least 29 Members of Parliament, the regime hastily enacted the fifth amendment to the independence Constitution, which now demanded that those defecting to KPU had to resign and seek re-election to their new party. Besides the constitutional amendment, the regime also passed a cabinet resolution, which banned KPU.
The third strategy was through electoral malpractices meant to deny Opposition politicians their parliamentary seats. This was witnessed in the regime’s fight against KPU, but also against regime critics such as JM Kariuki. The fourth strategy involved concocting propaganda against the Opposition, including accusing it of seeking to overthrow the Government with the help of foreign powers, staging discoveries of weapon caches in the offices of Opposition leaders, and branding the Opposition with colourful names, the most famous of which was Attorney General Charles Njonjo’s labelling of the group of vocal backbenchers consisting of Koigi Wa Wamwere, James Orengo, Abuya Abuya, Chelagat Mutai, Chibule wa Tsuma, Mwashengu wa Mwachofi and Lawrence Sifuna as the ‘Seven Bearded Sisters.’ The final strategy involved direct removal of political opponents, either through assassinations as witnessed in the cases of Pinto, Mboya and Kariuki, exile as was the case of Orengo and Mutai or detention, as was the case of at least the 26 detainees at the time of Kenyatta’s death in August 1978.
A key player in ensuring the subservience of horizontal accountability institutions to the Kenyatta regime was Attorney General Charles Njonjo. Njonjo’s control of the rule of law institutions spanned the broad expanse of judicial, parliamentary, electoral, investigative, and prosecutorial spheres. Within the Judiciary, at least one Chief Justice, James Wicks, is on record indicating that he asked for direction from Njonjo on how to decide cases. Within Parliament, Njonjo wielded immense powers witnessed in the swiftness with which he had laws passed such as was the case in passing the law which salvaged Paul Ngei from sanctions over electoral malpractices. He also controlled Parliament through detaining and exiling vocal backbenchers.
For electoral agencies, it was Njonjo who appointed the national election supervisor, and controlled the entire electoral management system through district commissioners who acted as election returning officers. For investigative agencies, he used them to collect information on potential rivals including cabinet ministers and MPs and used it against them. In the prosecutorial sphere, Njonjo used his powers of prosecution to punish opponents and media outlets that were critical of the government. The list of people jailed in this way included Wangari Maathai, media personality Salim Lone, MPs Mark Mwithaga, Muhuri Muchiri, Jesse Gachago, and LSK member AR Kapila. With such expansive influence on horizontal accountability institutions, Njonjo diminished their ability in restraining the Kenyatta regime.
As for vertical accountability, which largely emanates from actions of societal groupings, the Kenyatta regime cultivated a chequered relationship with many entities within this realm. Among these were the Church, the media, ethnic groupings such as GEMA, trade unions, academia and professional organisations. In terms of the relationship with the Church, it complemented state efforts in the social and economic realms. Kenyatta himself adopted the Church as a platform for preaching unity in the country. Due to the minimal or largely negative role that these churches had played during the decolonisation period, they lacked the legitimacy to be critical of Kenyatta. In time however, especially with the increased Africanisation of leadership within these mainstream churches, a more critical stance began emerging from some of them. This was largely centred on the National Council of Churches of Kenya (NCCK) and was communicated through publications. There were three main critical Church-sponsored publications during this period, namely Target, Beyond and Rock.
Of the three, Target was the most radical, publishing on politics. Its editor, John Schofield was, however, dismissed after he criticized the Government for constructing the Kenyatta International Conference as Kanu headquarters using public funds. He was replaced by Henry Okullu, who continued Schofield’s critical editorial policy. Okullu was responsible for some of the explosive denunciations of the Kenyatta excesses through publishing articles such as ‘Complaints of the Wananchi – a Confidential Report to the President’ and ‘Who Controls Industry’ both of which addressed ills of the Kenyatta regime.
It was, however, the oathing ceremonies in the aftermath of the assassination of Tom Mboya in 1969, which led to open disagreement between the Kenyatta regime and the Church. Although Kenyatta attempted to co-opt part of the Church into taking part in the ceremonies, it rejected this and wrote at least three letters against the oaths, with the first letter denouncing the oaths, the second decrying the plight into which the oaths were pushing the GEMA community and the third lamenting the brutality with which the oath was forced onto people. Beyond the letters, the Church staged a public anti-oath demonstration, forcing Kenyatta to capitulate.
In general, however, the Church’s relationship with the Kenyatta regime was one of, at best respectful distance from, or at worst, complicity in the regime’s excesses. Not only were significant sections of the Church complicit in the land and property grabbing prevalent during the Kenyatta era, it also relegated any serious engagement with the regime’s excesses to a few lone voices in the Church, particularly Okullu and David Gitari.
Besides the Church, the media was part of societal groupings whose relationship with the Kenyatta regime was important in fostering accountability in the regime. By Independence, Kenya had at least 2 major dailies – the East African Standard, which started in 1902, and the Daily Nation, which emerged in 1960. In addition to the two newspapers, the Kenyatta era witnessed the gradual expansion in media outlets, including the emergence of the Weekly Review in 1975 and the rise of Church-affiliated publications. Besides, the broadcasting media witnessed the nationalization of the Voice of Kenya radio and television and its subsequent branding as the Kenya Broadcasting Corporation in 1967.
In terms of editorial content under the Kenyatta regime, the record indicates snippets of restraining the regime by a section of the media, but which were scuttled. As was the case with the Church-affiliated publications, they condemned the regime’s excesses, but this was at the risk of personal losses, as happened for the Target editor John Schofield, who was sacked for denouncing use of public funds to construct the Kanu headquarters. A more pronounced case of how the regime treated the media was witnessed in its relationship with the Daily Nation. Under the editorial direction of George Githii who had been Kenyatta’s personal press secretary, the Nation became more critical in its reportage of corruption and bad governance under the regime. One case reported under this direction involved Nairobi Alderman Charles Rubia, who wanted to purchase a Rolls Royce. The Nation’s scathing attack of the purchase led to the President forbidding it. Another case, which the Nation reported involved corruption at the National Maize Reserve, implicating veteran politician Paul Ngei. Kenyatta’s reaction in this instance consisted of dropping Ngei from the Cabinet and ordering an inconclusive inquiry into the matter.
Direct confrontation between the Nation and the Kenyatta regime occurred over the Preservation of Public Security Act of 1966. The Nation vigorously opposed the Act, arguing that there was no justification for detention without trial. This stance brought its editor-in-chief in direct conflict with top regime functionaries and prompted President Kenyatta to summon and warn the editor against going ‘too far’. The newspaper also lost its Ghanaian expatriate deputy editor who was subsequently deported.
The same ambivalent relationship may be said to have applied in the regime’s interaction with academia. By the time the regime wound up in 1978, there was frequent confrontation between its agents and academia. This was particularly so after the assassination of JM Kariuki, although other protests had been witnessed, for instance in the appointment of Josephat Karanja as University of Nairobi’s Vice Chancellor, which was denounced as unmerited. With Kariuki’s assassination, the academia became a vocal critic of the regime, with both students and academic staff staging protests and generating radical publications. This led the regime to ban certain academic works, and target prominent anti-regime academics such as Ngugi wa Thiong’o, who was thrown into detention and later exiled.
The final significant societal grouping that related with the regime in a way that should have fostered accountability was the labour movement. The regime inherited a robust labour movement that had cut its teeth in opposing colonisation. Fully aware of the power which the movement wielded, the Kenyatta regime embarked on a systematic dismantling of the movement soon after independence. It did this by appointing a nine-member committee comprising Cabinet ministers, among them former trade union leader Tom Mboya. The committee’s mandate was to review the trade union situation in the country, make recommendations on how to centralise movement in the country into one monolithic entity which can be easily controlled by the government, and provide justification for the expected clamp down on the movement.
Following the committee’s recommendations, the regime deregistered at least two unions, the Kenya Federation of Labour and the Kenya African Workers Congress in 1965. Their members were prohibited from affiliating to any external labour movements and compelled to join the Central Organisation of Trade Unions (Cotu), which the government created as the new union of all Kenyan workers. The President appointed Clement Lubembe as the union’s first secretary-general, affiliated it to the ruling party Kanu and kept its leadership under constant watch to ensure it did not depart from supporting government policy. Hence, of all the societal groupings, it was the labour movement that was the most thoroughly co-opted by the Kenyatta regime.
It was under this regime of subservient checks and balance institutions and co-opted and controlled societal groupings that the LSK was expected to restrain the Kenyatta regime. In part two of this article, we shall explore how effective the LSK was in this endeavor.
— Muyumbu is researching the Law Society of Kenya’s history for his PhD at Egerton University. Reach him on firstname.lastname@example.org