The Lyttleton Constitution

Shortly after the outbreak of the Mau Mau rebellion, Colonial Secretary Oliver Lyttleton decided in 1954 to introduce a new constitution for Kenya. It created a new Council of Ministers to help the Governor run the country.

The Council was multi-racial, composed of three Europeans, two Asians and one African.

The first African appointed as a minister was Benaiah Apollo Ohanga, named as Minister for Community Development and African Affairs.

The Lyttleton Constitution, as it came to be known, also allowed for the election of Africans as unofficial members of the Legislative Council (Legco) from 1957. Previously, indegenes had been nominated by the colonial government.

The first African nominated to the Legco was Eliud Mathu in 1944. The other nominees who joined him before the 1957 elections were: W.W.W. Awori (North Nyanza), B.A. Ohanga (Central Nyanza), Jimmy Jeremiah (Coast), F.K. arap Chumah (South Nyanza), James Muimi (Ukambani) and Daniel arap Moi (Rift Valley).

While the Europeans were still dominant in the Legco and the Council of Ministers, the Lyttleton Constitution failed to please either the Africans or the settlers – the latter unhappy with Africans acquiring representation, and the former feeling short-charged.

Failure by the Lyttleton Constitution to allow Africans to form political parties, or any political organisation, also made it unpopular. It was not until 1955 that Africans were allowed to form parties along “district” lines, meaning they were barred from forming nationwide political parties.

The only nationwide body that was operating was Tom Mboya’s Kenya Federation of Labour. It utilised its links with both British and US trade unions to agitate for both worker rights and political change.

A new crop of politicians emerged from the 1957 Legco polls: Masinde Muliro as Nyanza North representative, Oginga Odinga (Nyanza Central), Lawrence Oguda (Nyanza South), Daniel arap Moi (Rift Valley), Tom Mboya (Nairobi), Bernard Mate (Central Province), James Muimi (Ukambani) and Ronald Ngala (Coast).

Their entry into the Legco coalesced them under a new body, African Elected Members Organisation (AEMO) and they started demanding 15 more seats.

Their argument was that representation in the Legco was skewed and that eight Africans could not adequately represent the interests of six million Africans. After the 1957 elections, the Legco had 59 members of whom only 29 were elected – 14 Europeans, eight Africans, three Asians and one Arab. The settlers had thought that the Lyttleton Constitution would last for 10 years.

AEMO demanded one electoral register, not separate ones for Africans, Asians, and Africans. They also wanted all people aged above 21 years to be allowed to vote, that the State of Emergency be lifted and the White Highlands opened to all races.

Faced with an AEMO boycott of ministerial positions, the government gave in and a new Constitution, the Lennox-Boyd Constitution, was enacted, which allowed Africans six more representatives.

Odinga called for a boycott of the six seats since they did not accommodate their demands. But others felt it was better to accept the seats, which saw the election of Dr Julius Gikonyo Kiano (Central Province South), Jeremiah Nyagah (Nyeri and Embu), Taita Towett (Southern Area), D.I. Kiamba (Machakos), Justus ole Tipis (Central Rift), and F.J. Khamisi (Mombasa Area). Other demands could be made later. They also got two ministerial positions and the creation of communal seats was stopped.

The number of Africans in the Legco now equalled that of Europeans, but AEMO chairman Oginga Odinga raised political tempers when he led members into agreeing not to accept Specially Elected Members who were to be voted for by the Legco.

Of the 12 elected was an African, Musa Amalemba, who proceeded to accept a position as Minister for Housing. He immediately became the pariah of nationalist politics.

The Lennox-Boyd Constitution, like the Lyttleton one, had got into trouble for failing to give Africans the equal rights they demanded.

Pressure started building for a new Constitution that would give Africans a new say and, in January 1959, they boycotted the Legco and formed a new body: Constituency Elected Members Organisation (CEMO), which broke up the same year into two groups – Kenya Independent Movement led by Odinga and Mboya, and Kenya National Party of Ngala, Muliro and Moi.

The rightwing settlers who supported white supremacy coalesced  under their own United Party led by Group Captain Briggs, while a moderate White group was led by Agriculture Minister Michael Blundell of the New Kenya party.

London’s new Secretary of State for the Colonies, Iain Macleod, embarrassed by the Hola Massacre, had conceded that a constitutional conference was better for Kenya after CEMO declared that the Lyttelton Constitution was dead and declined to take up any ministerial positions.


The Macleod Constitution

The first Lancaster Conference was held in January, 1960, and Britain conceded to the principle of one-man one-vote.  The African delegation had united behind Ronald Ngala with Mboya as the secretary. They presented a united front away from the divisions that characterised politics at home.

The conference was chaired by Macleod and Kenya’s then Governor, Sir Patrick Renison.  It resolved that the Legco have 65 elected members, 53 of whom were to be elected on a common roll while 12 were National Members.

Some 20 of the 53 seats were to be reserved for the minority communities: 10 for Europeans, eight for Asians and two for Arabs.

For the common roll seats, the ballots were to be given on condition that:

(a)   One had the ability to read and write one’s own language or be over 40 years of age;

(b)   Be an office holder in a wide range of scheduled posts at time of registration; or

(c)   Have an income of 75 pounds a year.

The Governor retained the right to nominate members.

Also there was to be a Council of Ministers, with an Arab representative having the right of attendance. The governor had the right to appoint ministers and distribute portfolios.

At this conference the ban on nationwide political parties was also lifted, giving way to the formation of Kanu in May 1960 and Kadu in June, 1960.

The two parties were to contest the Legislative seats in the 1961 elections.

As the last Lennox-Boyd Legco broke for the 1961 election on Thursday, December 23, 1960, the main worry for the Minister for Finance, K.W. McKenzie, was that the government was £1 million down in its revenue collection compared with the previous year, an indicator that the economy was in limbo.

The minister predicted that by the end of the financial year in June, the deficit would be huge.

Although the British Government had taken over the Armed Forces costs, which had enabled the Kenya government to carry forward two million pounds, the fear among the main investors, the white settlers, was what would come after the 1961 general election that was now a contest between Kanu and Kadu.

McKenzie said the deterioration was not due to either the Lancaster talks or the Constitution that arose from them but to failure by the politicians to maintain “the spirit of Lancaster”.

1961 General Election and Kenyatta

Kanu had been formed in May, 1960, and represented the two largest ethnic groups, the Kikuyu and the Luo, supported by the Akamba and the Abagusii. James Gichuru had been elected its first President. But the government denied the party registration for putting Jomo Kenyatta, who was in restriction, as its president. Odinga was elected Vice-President while Tom Mboya became its Secretary-General. Ngala had been elected in absentia as treasurer while Moi was his deputy. But a refusal by Ngala to accept the treasurer’s position saw the emergence of a new party, Kadu, that brought together tribes that claimed to be minority, including Moi’s Kalenjin Political Alliance and Muliro’s Kenya African People’s Party. Others brought into the fold were Maasai United Front and Ngala`s Coast People’s Union.

With the Kanu campaigns centred on the release of Kenyatta, this was becoming a tricky issue for the Government.

Kanu won 19 seats against Kadu’s 11 but refused to form the government until Kenyatta was released. Pressure was put by the colonial government on Kadu President Ronald Ngala to form a Coalition Government. Temporary ministers had been appointed in the meantime, but in May, 1961, Ngala agreed to form a new coalition government after a meeting with Patrick Renison, the Governor.

In London, Secretary of State for Colonies Iain MacLeod was quick to defend the Kadu government in the House of Commons, describing it as a solid bloc. There were fears that London was supporting a minority government:

“I do not regard this in any way as a minority Government. It is unquestionably the strongest cohesive bloc there is in the Legislative Council in Kenya and there is no question of this or any side of the House siding with any particular party. But the other African party to which the Hon. Member refers was invited first, by virtue of its size, and rightly so, to form a government but when it declined, for whatever reason, the Governor was unquestionably right to form a Government of all races based on the alternative.”

The decision by Ronald Ngala to form a government after Kanu refused despite its majority hold on the Legco divided the African politicians. Ngala had been promised by Renison that once he formed the government, Kenyatta would be released in four month’s time. They told him that the government was to build Kenyatta a house in Gatundu but it was not clear whether his movement would be restricted. Kanu continued to push for his unconditional release.

For Ngala to form the government, he had relied on the support of the New Kenya Party and the Indian Congress. Even with these, the Governor was forced to nominate eleven members.

In the opposition was Kanu which had been joined by the Kenya Freedom Party and two European National members – Bruce McKenzie and Derek Erskine.

For his part, McKenzie, who later became Kenyatta’s Minister for Agriculture, refused to join the cabinet arguing that “it will not serve the long-term interests of the minority groups”.

Without the members nominated by the Governor, Ngala’s government would not have survived. It was a minority government hoisted to power by the Governor and the settlers. There were attempts to approach the Kanu middlers, Dr Gikonyo Kiano and James Gichuru, to reach a compromise formula. Also, there were cables indicating that Mboya and Gichuru were studying preliminary proposals after talks with the Governor. But all these were shot down by Kanu radicals led by Odinga with the “No Kenyatta, No Government!” campaign.

On the other hand, the Governor had put his priorities as Government first, Kenyatta next. These became the fundamental questions that faced the government.


The Kenyatta question

Despite Ngala’s attempts to wage a “Release Kenyatta” campaign, this would not match that of the opposition Kanu led by Odinga who waged a campaign to discredit both Ngala’s coalition and the colonial government.

The Kanu Parliamentary Group started a series of private members’ motions to expose Kadu’s weak position on Kenyatta. One of the motions was on the “now and unconditional” release of Kenyatta.

After six hours of debate, the motion was defeated 43 to 26, with Kadu voting against Kenyatta’s rule. Kanu also demanded the repeal of the Outlying District Ordinance, with its restrictions on Kenyatta and other freedom fighters. Again, this was defeated. Ngala was greatly embarrassed.

Kadu was once again made to sign the Maralal Agreement, which said that African leaders wanted independence as the next stage of Constitution evolution and not self-government. But, again, Ngala retreated to state that Kadu was working for the next stage, which was self-government.

In a bid to assuage Kanu, which was in the opposition, the Ngala group moved a motion on Kenyatta’s release. The government motion was introduced by Masinde Muliro, who was the leader of government business, and stated:

That this House notes with approval the progress made by the Government in returning the large numbers of detained and restricted persons to normal life and that the Government is making all possible efforts to the end that Mr Jomo Kenyatta and all other such persons may be released as soon as possible and calls on everyone, both in this House and throughout the country, to co-operate in establishing and maintaining stable conditions and assured security so as to enable these objectives to be achieved without delay.

Attempts by Kanu to amend the motion to call for “unconditional release” of Kenyatta with immediate effect was defeated by the Ngala team, which argued that they were building a house for Kenyatta and that it was not complete. The debate in Parliament on May 18, 1961, caused tempers to flare between Kanu and Kadu as members tore into each other on their sincerity on Kenyatta’s release. Finally, Ngala won the day but not before Mboya had called him a “stooge” of the colonial government.

On August 14, 1961, Kenyatta was set free.


Land reform and settlement schemes

Another issue that faced Ngala’s coalition Cabinet was on land reform and settlement schemes. The main poser was the question of landlessness and unemployment and provision of funds to the new farmers.

The Coalition Government is best remembered for entering into talks with the World Bank in November, 1961, which started seeing the entrance of African farmers into the White Highlands. Known as Yeomen Schemes, and later on as Assisted Farmers Scheme, this idea created the first crop of big land owners among Africans – amid general landlessness and poverty in the country. The loans secured from the World Bank also meant that Kenya was getting highly indebted in order to finance these projects to create a buffer zone between the white settler farms and African reserves.

The land consolidation in Central Province had created a huge number of landless families who had been left in the Emergency Villages.

Also, the government was not in a hurry to finance the settlement schemes to be run as co-operatives.

The Cabinet also faced the dilemma of going on with the Yeomen scheme, where farms were divided into 20 acres and allocated to individuals, or the small holding schemes which were also too expensive to run.

It was Bruce McKenzie who suggested that there be a minister for settlements to move the idea forward.

But by 1962, after Kenyatta was released, chances of Kenya having a multi-racial government had evaporated and the settler support for Kadu had waned.


Rights of settlers to land

Even before Kenyatta’s release, one of the pending issues that bothered many settlers was about their rights in an African-led government. Though the matter had become critical at the First Lancaster Conference, it had not been concluded there.

It was thus a surprise when, on November 30, 1960, at the Buckingham Palace, the Queen signed the Bill of Rights as an addition to the Orders in Council implementing the Lancaster Constitution and prohibiting racial restrictions on land. While it was modelled on both the Cyprus and Nigerian Bill of Rights, the paradox was that the Kenyan Bill of Rights had been imposed without conclusive discussions between the groups.

The Bill covered many aspects of personal liberties, civil rights, public trials, respect for family and private life, freedom of conscience, freedom of assembly, compulsory acquisition of property and equality of economic opportunity.

While the nationalists were not in principle opposed to the Bill of Rights, they were shocked that this had been imposed on them.

Said Mboya: “This is just another stupid – or should I say – thoughtless act on the part of the Government. It is this kind of high-handed action that is likely to cause grave misunderstandings.”

The Bill had actually boxed any future Government – as long as Kenya was a Dominion under the Queen – from acting against the accepted principles of human rights. In a word, it had legitimised all colonial undertakings in Kenya and any attempt to right any wrongs would have to follow the legal path.

Again it meant that the Kenya government would not pass any law that was in conflict with the Bill of Rights. However, if Kenya became a Republic, it had a right to water down the Bill. But any attempt to remove the principles of human rights from a Constitution would have been seen as an excess, which no new democracy would have wanted.

The clause on the right to property was the key to the Bill of Rights. It gave property owners the right to appeal to the Supreme Court and demand “prompt payment of full compensation”.

The clause said that no property, movable or immovable, should be compulsorily acquired, except where such possession was necessary in the interest of defence, public safety, public order, public morality, public health, town and country planning, or the development and use of any property to the promotion of the public benefit.

Such owners were entitled to full compensation.

This was supposed to reassure white farmers that they would not lose their property without any compensation.

They had also feared that an African government might tax them out of their property. Hence then a new clause to guarantee “equality of economic opportunity”.

The particular clause said that “a person shall not, by reason that he is of a particular race, tribe, community, place of origin, religion or political opinion be subject to disabilities, restrictions or disadvantages with respect to taxation.” It was these rights that the Kadu-led coalition government exercised and informed their thinking.

The Bill of Rights was popular among some settler groups, especially on land. The New Kenya Party released a statement suggesting that to ease the pressure on land, it was necessary for the government to purchase some farms in the Settled Areas for Yeomen farmers and smallholder schemes.

This also required maximum development of agriculture in African-held farms to stimulate economic growth and employment.

But one of the problems was where to secure the finance to implement some of these measures. This was the question that faced the Ngala-led government.


Return of Mau Mau

After his arrest in Operation Jock Scott, Kaggia was charged, inter alia, with managing Mau Mau and being a senior member of it. He was tried, convicted and imprisoned until September, 1961, when he was confined to his home district.

The restriction of detainees and the arrival of the released prisoners became a major problem for the Coalition government.

One of the fears was that these former Mau Mau prisoners could wage a retaliatory campaign against the loyalists, especially in Central Province.

Kenyatta had completed his prison sentence on April 14, 1959, but was restricted at Lodwar, some 144 km south of Lokitaung, before he was finally moved to Maralal in April, 1961.

Members of the Legco were mostly worried about the future of their loyalist friends. One member openly said: “You can’t turn the clock backwards. I believe the Africans must advance and, having made promises, we must stand by them and make them work. But we must also stand by our promises to the loyalists.”

The matter was complicated by renewed oathing in Central Province with Gichuru, who had no time for the rise of Mau Mau radicals, pleading with the Kikuyu: “We want Kenyatta back but no amount of Mau Mau oathing will bring him back. We must show the government that we want peace and progress.”

Only Kanu could stop such activities since Kadu had little say in central Kenya. But Kanu’s demand was the release of Kenyatta, and the Mau Mau militants were willing to start their guerilla activities afresh.


Kahawa Barracks

Fear that the British Kahawa Military base on the outskirts of Nairobi would be used to crush nationalism in Kenya was amog the most tricky questions that faced the Cabinet. Although MacLeod had discussed it with both Mboya and Gichuru, the Kanu leaders, it became a sticking point in Ngala’s administration.

Kanu wanted the future of the barracks discussed and Mboya had said that the British must vacate.

The problem was that during Ngala’s leadership, the British had continued to build the Kahawa military barracks, annoying Kanu leaders, who wanted to be consulted on the issue.

The Congo crisis had demonstrated the seriousness of maintaining foreign bases in emerging nations and Kanu was hardening its stand on the need for Britain to vacate them after independence


The economy

MacLeod was of the view that the future of the colonial economy would be solid if “strong men” rose to become leaders. His bet was not on Kenyatta, whom he thought had lost that support after eight years of detention and restriction. After the January, 1960, Lancaster Conference, shares at the Nairobi Stock Exchange had slumped, an indicator of the fear that the investors had.

The investors feared that the economy would collapse if Kenyatta was released. This was the economic dilemma that also faced the Ngala cabinet and had to be addressed. Investors were worried that with Kenyatta out they would not get a return for their money. But Gichuru continued to argue that it was not the Africans who were pushing the investors out. The Whites who had formed a coalition party were the ones spreading fear on the future of Kenya.

Inside the Legco, Agriculture Minister Bruce McKenzie – one of the few whites with faith in Kenya – had warned that if there was a “rat race” exit of European farmers from Kenya after the promised 30 million pounds had been released to purchase land, “we, in the ministry, would have this land thrown at us, and we would have to attempt to hold up the national economy of Kenya, which would be an impossibility”.

The economy was facing hard times. Would it be sacrificed at the altar of political freedom? The British government tried to buttress the economy by ensuring that members of the Overseas Civil Service did not resign en masse and abandon their stations once Kenyatta was set free.


Unpopular Governor Renison

For describing Kenyatta as “leader unto darkness and death”, Governor Patrick Renison had become extremely unpopular.

While he had tried to balance between the feelings of nationalists and those of the settlers, he was getting frustrated that his efforts to keep the evolution towards independence at his own pace were largely unsuccessful.

There was also fear that there could be another breakdown of order, especially tied to Kenyatta’s release. The elections after the First Lancaster Conference had brought in a new crop of leaders but introduced new problems for him.

Besides the incessant quarrels within and between the political parties, Renison damaged his reputation among Africans for his Kenyatta remark.

Renison had in the same month published another Order in Council apparently barring Kenyatta from running for a seat in Legco. The Order had stated that no person who had served a prison sentence of more than two years would be allowed to contest.

Gichuru had told the Governor that failure to release Kenyatta to contest a seat for the Legco was immaterial. He said: “Laws are made by men. If Kenyatta is prevented now from presenting his candidature, the new Legislature will have to pass a law to allow him to become a member of it.”

Renison’s refusal to release Kenyatta was also seen by Kanu as a manufactured deadlock to make sure that Kanu refused to form the government after its victory. They thought that Renison wanted to frustrate them to break into small factions.


The Second Lancaster Conference

In the same month that Kenyatta was sworn in as the Legco member for Fort Hall, he led the Kanu delegation to the second Lancaster Conference of January, 1962, which was to plot the path towards a self-government.

A month into the conference and as they went through the party proposals, they – one by one –had made very little ground. Kadu had introduced regionalism with the support of the settlers’ parties in a bid to frustrate Kanu’s push for a unitary state. It was Kenyatta who saved the talks by telling his Kanu supporters: “If we fail, government will be snatched from our hands. If we bring no government back with us, the people will regard it as an arch failure. We might be forced to accept a constitution we do not want, but once we have the government we could change the constitution.”

The new Colonial Secretary, Reginald Maudling, forced Kenyatta to enter into an equal coalition with Ngala, although the latter had won only a quarter of the votes.

An interim coalition government was to be formed with Kenyatta and Ngala having equal status as Ministers of State.

Kenyatta was not happy with the regionalism policy adopted at Lancaster and criticised it all through.

Kenyatta blamed Ngala and Kadu for the delay in getting total freedom from this second meeting, saying that Kadu wasted time demanding Majimbo. But Kanu still managed to have its vision adopted of a strong and effective central government to plan the national economy. The conference had cost Sh756,000. At the end, Maudling declared: “We have now begun the process of cooperation by which alone Kenya’s urgent political and economic problems can be tackled.”

The Maudling Constitution was complex and was accepted to allay Kadu’s fear. Seven regions were to be created with separate governments and there was to be a two-House legislature, the Senate and the House of Representatives.

Elections were to be held in May, 1963, but before that there was to be a coalition government of the Kenyatta and Ngala-led parties.

To form a new government, the, the acting Governor Eric Newton Griffith-Jones on April 6, 1962, accepted the resignation of Ngala, Kenneth William McKenzie, Sir Michael Blundell, Muliro, Moi, Bernard Mate, Towett, Havelock, Ernest Leslie Howard Williams and Arvind B. Jamidar as ministers.

To save the colonial government from collapse the acting Governor appointed temporary ministers: Richard Owen, John Butter, Vincent Maddison, William Greg, Michael Evans, Peter Macie Gordon, Jack Ardie, Robert Brown, John Webster and Arthur Horner.


The Kenyatta-Ngala Coalition Cabinet

This was a coalition government involving both Kanu and Kadu. Both Kenyatta and Ngala decided to hold a convention, The Kenya We Want, in August, 1962. At this convention some of the issues that had not been tackled at Lancaster, including powers of the regions, distribution of revenue, powers of the central government, and the percentages required by the Senate and the Lower House to amend the Constitution were listed to be discussed in the final Constitutional Conference that was set for September, 1963. Kadu was concerned about the finances and the police. While the regions were to finance themselves, they were also to run all local and regional services.

This required revenue derived from customs and excise duties and consumption taxes on petrol and diesel. The regional authorities were also to get a share of the revenue received by the central government from customs and excise duties on items other than petrol and diesel in accordance with the population of each region.

Apart from the right to fuel and vehicle tax, the regions had no source of revenue. Mboya referred to the regions as having a “status inferior to that enjoyed by the Nairobi City Council”.

Regions could not impose taxes apart from those provided for. Also Kadu realised that there was a major weakness on security. While there were regional contingents under the police force, one unit was under an Inspector-General and the General Service Unit could go to any region for 48-hours without the consent of the regional president.

The regions were also barred from prejudicing the exercise of the executive authority of the Central Government of Kenya and were to ensure that any law made by the Central Legislature was complied with in the region.


Mau Mau remnants

One of the issues discussed by the Council of Ministers was the re-organisation of Mau Mau by some of the militants who had returned.

Defence Minister Anthony Swann had prepared a dossier on some of the militants and in December a police operation was conducted to track down Mau Mau militants who had refused to surrender.

“The capture of the colony-wide leader of the militant wing of the Kenya Land and Freedom army and his second in command in Kisii district is of interest,” the Cabinet was informed.


Last assurance

On August 13, 1963, in a meeting arranged by Lord Delamere and Bruce McKenzie, Kenyatta travelled to Nakuru Town Hall to address the European settlers.

Lord Delamere was the chairman of Kenya National Farmers Union, which claimed that any farm take-overs would jeopardise their confidence in the new state.

Already, stock theft and unauthorised youth activities were causing mayhem on some farms. The whites wanted an assurance from the Prime Minister that the sanctity of land ownership would be respected.

Kenyatta did not disappoint. He told the settlers that they should not live in fear and suspicion. He advised the whites and the Africans to forge ahead by forgiving and forgetting the past. His speech was epic:

“We must also learn to forgive one another. There is no society of angels, black, brown or white. We are human beings and, as such, we are bound to make mistakes. If I have made a mistake to you, it is for you to forgive me, if you have made a mistake to me, it is for me to forgive you.”

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