Britain and Kenya’s Constitutions, 1950–1960 By Robert Maxon

As usually conceived in the twentieth century, democracy is government by the people in which supreme power is vested in them or in their elected agents. Characteristics of a democratic system of government include the following concepts: popular sovereignty as expressed through free and fair elections (an extensive competition for positions of government power), rule by the majority with protection for rights of the minority, established limits on government power, a guarantee of basic human rights with equality before the law for all, political pluralism, and “the values of tolerance, pragmatism, cooperation, and compromise.”¹⁸ Such did not characterize colonial Kenya, which was ruled by an authoritarian state with an all-powerful executive branch.¹⁹ At the start of the 1950s, therefore, the government of Kenya was characterized by few of the key traits of democracy. For example, the majority of the population did not enjoy the right to elect representatives to the colony’s LegCo. Moreover, there was a lack of agreement among the racially defined groups involved in the constitution-making process as to the relative importance of the various pillars of democracy.²⁰ During the decade, for example, African political leaders demanded an increase in African representation in the legislature leading to majority rule and insisted on equality before the law and basic human rights. For the minority communities in Kenya (especially the Europeans) and the British government, protection of basic rights (such as property) for those was seen as most crucial.

To move from the colonial system toward democracy, the system of representation proved quite significant. All parties involved in constitution making accepted that political authority should be based on a popular mandate. The latter is limited in that in a democracy citizens have the right to renew the mandate of those holding political power through periodic free and fair elections. There must be universal suffrage, with citizens guaranteed the right of freedom of association and expression.²¹ The system of representation was indeed a critical issue in the constitutional innovations worked out for Kenya from 1954 through 1960. Prior to 1950, Europeans, Asians, and Arabs could vote. The franchise was universal, but voting was communal because voters chose only among a slate of candidates belonging to their racial group. Representation in