Emergency Powers in Context

The Emergency Powers Order in Council was first used in Kenya to address wartime threats. On March 9, 1939, the Emergency Powers Order in Council allowed a governing official “to make such regulations as appear to him to be necessary or expedient for securing the public safety,” including the power of detention without trial.Footnote ⁸ On August 24, UK Parliament passed the Emergency Powers (Defence) Act, extending its provisions to colonial governors through the Emergency Powers (Colonial Defence) Order in Council.Footnote ⁹ The Colonial Office, conceptualizing “states of exception” where the legal principles of English common law could be superseded, saw utility in using emergency powers to address insurgency and challenges to colonial rule.Footnote ¹⁰ Across the empire, governors invoked Emergency Regulations against local populations. Kenya's colonial government had previously held the power to detain individuals without trial through the Native Courts Regulations of 1897, a power that transferred through other Regulations up to 1952.Footnote ¹¹ But in 1949, the Deportation (Aliens) Ordinance made detention without trial acceptable only in emergency cases, with oversight from the Colonial Secretary.Footnote ¹² Only for a brief period, 1949 to 1952, was Kenya's governor denied powers to detain without trial. From 1952, the Emergency Powers Order in Council would become central to the suppression of the Mau Mau insurgency. On October 7, 1952, Mau Mau murdered Paramount Chief Waruhiu, a key ally of the colonial regime and staunch opponent of the Mau Mau. This was the trigger for the colonial governor of Kenya, Evelyn Baring, to request a declaration of emergency, which was duly approved by Colonial Secretary Lyttleton and implemented from October 20.

The Emergency Regulations allowed the colonial government to take extreme action under the protection of legality. As Duffy has noted, Baring very rapidly invoked legislation against non-Europeans that flagrantly disregarded liberal legal principles.Footnote ¹³ The implementation of emergency powers varied from place to place, but in Kenya it began with the arrest of suspected Mau Mau leaders in “Operation Jock Scott.”Footnote ¹⁴ The police arrested Jomo Kenyatta and over a hundred other nationalist leaders, many of whom had no connection to the Mau Mau movement.Footnote ¹⁵ Among those detained along with Kenyatta was the radical nationalist Bildad Kaggia,Footnote ¹⁶ and Senior Chief Koinange wa Mbiyu, who was initially charged with Waruhiu's murder.Footnote ¹⁷

What began as an effort to arrest the “ringleaders” of Mau Mau quickly spiraled into a full-fledged counterinsurgency operation as British troops arrived in Kenya and Emergency Regulations were extended across all aspects of Kenyan life.Footnote ¹⁸ Detention without trial was initially authorized only through Baring's office, but this power was soon extended with “District Detention Orders” being issued locally and without any requirement for evidence or authentication. This led to the incarceration of perhaps as many as 150,000 people being detained without trial, some of them being held under abysmal conditions.Footnote ¹⁹ Emergency conditions also led to greater numbers of accused being brought to court, and so to relieve pressure upon the court system, Baring issued the Emergency (Emergency Assizes) Regulations in March 1953. This allowed for Mau Mau cases where a capital charge prevailed to be heard in a truncated procedure, where a single judge presided without a jury, where witnesses need not be summoned, where defendants often lacked properly briefed counsel, where prosecution evidence did not need to be revealed to the defense, and where the opportunity for appeals was greatly reduced.Footnote ²⁰ From 1952 to the Emergency's end in 1960, an estimated 1,499 capital punishment convictions occurred in these Special Courts.Footnote ²¹

From April 1953, further extensions of the Emergency Regulations sanctioned confiscation of land and other assets, including livestock, crops, and money from suspected rebels, allowing the government to censor newspapers and restrict public assembly and other aspects of political freedom.Footnote ²² The applicability of these measures was sometimes questionable, yet many of these regulations were widely used and their powers gradually expanded. Perhaps the most consequential law for the future of Kenyan politics, the 1953 Forfeiture of Lands bill, enabled land confiscation from individuals convicted of Mau Mau-related crimes. Land confiscation occurred anywhere in affected areas of the Emergency where Kikuyu males were absent, based on very loose requirements of evidence. On July 18, 1955, for example, Deputy Governor Frederick Crawford issued Native Land Rights Confiscation Orders against hundreds of Kenyans in multiple districts.Footnote ²³ Collective punishments, including extensive fines, also became the norm, being applied across a range of legislation. A District Commissioner might order an entire community suspected to be assisting Mau Mau to pay a fine of twenty shillings each, as happened in Naivasha on May 20, 1955.Footnote ²⁴ On August 24, 1955, colonial officers used the Emergency (Control of Crops, Food, and Dwellings) Regulations in Timau Township to block food sales and purchases to Kenyans without a permit.Footnote ²⁵

Emergency Regulations were also tacked on to existing legislation, allowing in some cases for a dramatic extension of powers. For example, the Police Ordinance (1948) already allowed a Provincial Commissioner or senior police officer to issue Curfew Orders in cases where there was “a reasonable apprehension that a riot” or other threats of violence might occur, and to regulate meetings, public broadcasting, and speeches. The Governor's authority to rescind or change the Curfew Order checked these powers, and the extent of the curfew was restricted.Footnote ²⁶ After 1954, the Governor's influence on this was removed and the powers were extended down to District Commissioners, while the punishments imposed under the Curfew Orders were greatly enlarged in 1955.Footnote ²⁷ By 1955, a further amendment allowed Curfew Orders not only “in the face of imminent trouble, but also as a precaution to secure the public safety or to maintain public order.”Footnote ²⁸ By 1957, the law allowed that “the police officer in charge of the Force in any area […] may, in any such manner as he may deem fit, regulate the extent to which music may be played, or to which music or human speech or any other sound may be amplified, broadcast, or otherwise reproduced by artificial means,” and to “issue such orders as he may consider necessary or expedient.”Footnote ²⁹ This trajectory of expansion in powers was common during the Emergency, as laws became more punitive over time with checks on power being weakened.

Security Laws: KANU Opposition and Colonial Abuse

Once the British army adequately suppressed the insurgency, by the end of 1956, Governor Baring revoked certain Emergency Regulations to relieve the Kenyan court systems and appease the British metropolitan government, who were by then pressing for relaxation of restrictions.Footnote ³⁰ African political participation was restored at the end of 1956, and constitutional reform allowed African candidates to stand in Legislative Council elections in March 1957.Footnote ³¹ Africans now had a limited political voice, and some immediately agitated for an end to emergency powers. Colonial Secretary Lennox-Boyd met with African Elected Members in London in July 1957, and then held discussions with them in Nairobi on his visit there in November. Two of Kenya's first elected African Legislative Council members, Bernard Mate and Tom Mboya, were particularly outspoken about the Emergency Regulations regarding land confiscation and restrictions of political freedom. Mate acknowledged the continued threat of violence but nevertheless demanded an immediate end to the Emergency. Lennox-Boyd and Baring referenced the threat that the KLFA still posed and strongly advocated maintaining emergency powers.Footnote ³²

Privately, the Kenyan colonial government reluctantly accepted that these laws had to be revoked. By 1957, the Emergency was a deep embarrassment; colonial rule had failed to secure law and order through liberal democratic means in Kenya. Yet Governor Baring worried about releasing detainees before the government's rehabilitation methods had taken effect.Footnote ³³ Fearing both political reprisal from settlers and the violence of vengeful ex-detainees, Baring resolved to retain powers like detention without trial in permanent legislation. In September 1957, the War Council reviewed the Emergency Regulations, requesting the Internal Security Working Committee to review which laws the government might relax without endangering colonial security. In January 1958, the Committee reported that the government should not revoke Emergency Regulations until permanent legislation replaced them, if they were revoked at all.Footnote ³⁴ Colonial policy permanently entrenched illiberal emergency powers and secured the bureaucratic state's ability to suppress popular mobilization. Through this policy, Baring resolved to satisfy the British government and nationalist Kenyans’ demands for an end to the Emergency while also placating settlers and protecting loyalists from a Mau Mau revival.

From 1958 until the Emergency ended in 1960, colonial security officials embarked on a policy of emergency relaxation, which they claimed as “liberalization,” but stemmed more pragmatically from their desire to reduce the burdens on colonial security and the costs of the Emergency. Baring initially took a slow approach to “liberalization,” introducing changes only gradually. On September 4, 1958, for example, African Affairs Minister C.M. Johnston announced a relaxation of emergency measures in areas less affected by the insurgency, including relaxed curfew measures and in some areas, such as Meru, a lifting of the entire curfew.Footnote ³⁵ Such measures were typically opposed by European settlers, who feared a resurgence of the violence, but were pushed through nonetheless.Footnote ³⁶

The Hola Camp Massacre, in March 1959, forced public recognition that the conditions of the Emergency needed to end. On March 3, 1959, prison guards at the Hola detention camp killed eleven Kenyan prisoners for refusing hard labor. The courts had tried and charged only four of the eleven prisoners; seven had been detained on suspicion alone.Footnote ³⁷ Attempts to cover-up the massacre implicated Governor Baring and brought heavy criticism upon Colonial Secretary Lennox-Boyd, who persisted in defending the rehabilitation methods applied in detention camps and characterized the prisoners as “sub-human creatures.”Footnote ³⁸ In the parliamentary debates on Hola, the British government was pressed hard to end the Emergency as speedily as possible.Footnote ³⁹ Yet, in Nairobi senior officials continued to insist that emergency powers were needed if the threat of a KLFA resurgence was to be thwarted. After Hola, the strategy to achieve this changed, with officials now arguing not for the maintenance of special Emergency Regulations but for their incorporation in substantive law. This could even be presented as a stage of “liberalization,” thus allowing the government to “retain Emergency powers in all but name.”Footnote ⁴⁰ Colonial administrators now busied themselves drafting new legislation, retaining all the most significant emergency legal powers except for detention without trial. This exception finally recognized that the British government had now signed onto the European Convention of Human Rights. Article Five of the Convention did not allow for detention without trial except in cases of an emergency defined as threatening the life of the nation.Footnote ⁴¹ But Kenyan colonial officers would also find a way to maneuver around this by including within the new PPS Ordinance provision for detention without trial under conditions of a local emergency. Baring's successor, Patrick Renison, chose to announce these changes in a speech to Kenya's Legislative Council.

In preparing for his speech on November 10, 1959, Renison sought to strike a delicate balance between the liberalization policy pushed by his Colonial Office bosses, but also to retain illiberal measures to calm wary colonial settlers and assist the Kenyan government's ability to suppress dissent. In writing the speech, Renison consulted London, where Lennox-Boyd's successor, Iain Macleod, pushed him to include statements touting liberalization efforts, such as his line that he was “not trying to restrain politics but to ensure peace.”Footnote ⁴² To the still European-dominated Legislative Council, Renison outlined three major legislative acts to address the end of emergency and ensure public security; the PPS bill, the Detained and Restricted Persons bill, and the “Act of Grace.” The new PPS bill kept emergency powers “available in reserve should they again be unhappily required.”Footnote ⁴³ The bill allowed the Governor to, “whenever he considers it necessary for the PPS, bring into being powers to make regulations for such purposes as the exigencies of the situation strictly require.”Footnote ⁴⁴ The Detained and Restricted Persons bill allowed the continued detention and imprisonment of individuals (such as Kenyatta) whose release threatened Kenya's security. This bill also set up the “Appeals Tribunal,” an advisory body tasked to review detained and restricted persons every twelve months.Footnote ⁴⁵ Finally, Renison's “Act of Grace” promised to pardon and release Mau Mau detainees--albeit with a long list of exceptions, including Kenyatta and four affiliates who in October 1952 had been detained under the Deportation (Immigrant British Subjects) Ordinance of 1949. After announcing this “Act of Grace,” Renison explained that many of the security provisions against militant nationalists remained in force with the new laws.Footnote ⁴⁶ These laws enabled Renison's government to maintain control over Kenyan nationalists and the bureaucratic state once emergency laws expired in January 1960.

Initially, the politicians who later became members of KANU had starkly opposed substantive legislation that retained any vestige of colonial emergency powers, but as they gained power themselves, the potential advantages of the PPS Ordinance became apparent. During Renison's announcement, Julius Kiano reportedly ran out of the meeting clapping ecstatically.Footnote ⁴⁷ Newland G. Ngombe, an African Specially Elected Member, felt that ending the Emergency was a mistake as violence and intimidation continued, and questioned whether some of the nationalists were participating in secret societies at night.Footnote ⁴⁸ Another African Elected Member from the Maasai community, Justus Tipis, responded that he should substantiate these claims or keep quiet, and pressed for the Act of Grace to extend to Kenyatta.Footnote ⁴⁹ Yet Tom Mboya and others viewed the end of emergency as a farce, pointing to the new substantive legislation and Kenyatta's exile as evidence of continued restrictions on Kenyan life. Mboya stated:

With the new substantive legislation in place, Kenya's Emergency formally came to an end on January 12, 1960.

From January 1960 to Kenyatta's release in August 1961, the colonial government used their new substantive laws to the detriment of Kenyan political organization. In Renison's view, Kenyatta and others represented a threat to Kenya's security and Britain's geopolitical interests. Kenya's nationalists continued to be victims of these laws rather than benefactors during this period, so they opposed their use until Kenyatta's freedom. At Kenya's first Lancaster House Conference from January 18 to February 21, 1960, Kenyatta's restriction created tensions. Colonial officials aimed to discuss constitutional development in Kenya in a measured and gradualist manner, yet Macmillan's “Wind of Change” speech to the South African Parliament occurred during the conference and worked to destabilize the discussions.Footnote ⁵¹ The two main Kenyan political organizations represented, Odinga and Mboya's Kenya Independence Movement (KIM) and Masinde Muliro and Ronald Ngala's Kenya National Party (KNP), disagreed by this point. Though these parties would not last past 1960, the dynamics of their disputes would persist throughout the transition period. While the KNP espoused multi-racialism and initially grew out of the Legislative Council African Elected Members, Odinga and Mboya's KIM sought an African nationalist platform.Footnote ⁵² While these two groups could agree on the need for Kenyatta, or Peter Koinange, son of the detained Senior Chief Koinange wa Mbiyu and an exile in London, to participate in the first conference, they agreed on little else.Footnote ⁵³ In protest, the African delegates initially boycotted the conference, and following the “Wind of Change” speech some of the leading white settler leaders refused to play any further part and returned to Nairobi.Footnote ⁵⁴ Nonetheless, substantive legislation allowed the colonial regime to protect the ideological foundations for a favorable bureaucracy at independence at the expense of African Elected Members’ desires for national government.

Renison had avoided discussion of the PPS legislation at Lancaster House, but he faced continued scrutiny from London. In March 1960, the Inns of Court Conservative and Unionist Society member, Charles Fletcher-Cooke, wrote a letter of concern to Colonial Secretary Macleod over the PPS legislation's avoidance of the European Convention of Human Rights' obligations and its contradictions with the “British concept of Justice.”Footnote ⁵⁵ In June 1960, Governor Renison defended the laws to Macleod, saying it was necessary to retain Part Three of the PPS Ordinance because African District Councils refused “to introduce further controlling legislation” and because of the revival of “the Kenyatta cult” in recent months, which they feared would require further action if mobilized.Footnote ⁵⁶ Renison argued for the retention of Part Three at least until the end of 1960, but they kept these laws right through to December 1963 and beyond into Kenya's independence.

Throughout 1960, colonial officials exercised control over their districts in central Kenya by using the PPS Ordinance to suppress further KLFA activity. In Nyeri District, rising tension and violence culminated in the murder of Headman Wambugu Kimathi at his home on May 28 by four Kikuyu individuals suspected of Mau Mau affiliation.Footnote ⁵⁷ The violence and a resurgence in KLFA activity scared settlers like Captain Briggs, who demanded the government to “make use of the existing legislation to the full to terminate once and for all the revival of Mau Mau.”Footnote ⁵⁸ Odinga spoke out against Briggs, consistent with his opposition to substantive legislation. In response to the murder, Renison published the Public Security Regulations for Nyeri District on June 8, allowing Central Province Commissioner Hughes to issue curfew orders in multiple problem areas.Footnote ⁵⁹ On June 22, KANU Commerce and Industry Minister Julius Kiano spoke out against the ability of a Provincial or District Commissioner to impose a curfew.Footnote ⁶⁰

In December 1960, three months before the first national general election between KANU and the Kenya African Democratic Union (KADU), Kenyan security officials prepared to use the PPS Ordinance to respond to potential election violence. These two political organizations somewhat resembled the KNP and KIM. KADU represented smaller minority communities like Ngala's Mijikenda and Daniel Moi's Kalenjin, against KANU's Luo and Kikuyu representation in Odinga and Mboya, and later the released Kikuyu members like Kenyatta. While KANU and KADU had ideological differences, they also had internal disputes that were subjugated to the main source of division: the minority groups of KADU feared oppression and being blocked from the rewards of independence by the majority groups.Footnote ⁶¹ Colonial security officers believed some in KANU had ties to KLFA activity, and they watched the coming election nervously. The Security Council advised that, if Kenyans organized into campaigns of civil disobedience or passive resistance and boycott, they would use the military, security forces, and varying degrees of the PPS Ordinance in “Operation Prophesy.” In a serious but localized situation, “Operation Prophesy” would utilize Section Three of the PPS Ordinance. But in a “grave situation” affecting the entire colony, “Operation Prophesy” would invoke Section Four, amounting to a declaration of emergency.Footnote ⁶² In such a case, the colonial government planned to hold political detainees in the old Mau Mau emergency detention camps.

Fortunately, the 1961 elections passed without widespread violence, but its political outcome would serve to further consolidate the PPS Ordinance in Kenyan law. KANU won handsomely, but its members refused to govern without Kenyatta. On May 17, 1961, Odinga and other KANU politicians proposed a motion in the Legislative Council for the “Release of Jomo Kenyatta and others.” The motion failed forty-three votes to twenty-six with Ronald Ngala and other KADU elements voting in opposition.Footnote ⁶³ KADU then accepted a proposal to form a government with the settlers, and through a Government by Decree prepared by Governor Renison, KADU governed without an electoral mandate for the next two years.

In May 1961, the colonial government pushed the boundaries of security measures allowed under the European Convention of Human Rights, again provoked by anxieties over continued KLFA activity. On May 18, Police Commissioner Richard Catling and Director of Intelligence and Security, Mervyn Manby, jointly requested permission to detain suspects without trial or remand. They argued that to properly infiltrate Kikuyu subversive movements, they needed to interrogate individuals, requiring at least twenty-eight days of detention. Catling even wanted to detain individuals indefinitely. Attorney General Eric Griffith-Jones pointed out that such measures violated the European Convention, except in a case of emergency threatening the life of the colony. Faced with deadlock in these discussions, Parliamentary Colonial Undersecretary Hugh Fraser recommended that Governor Renison evaluate whether provision could be made for detention without trial of up to twenty-eight days. Renison felt uneasy, his view being that as they moved toward independence, laws should become less authoritarian.Footnote ⁶⁴ Griffith-Jones finally concluded later in May that an emergency declaration was unjustified, and any invocation of the second part of the PPS bill, which allowed for detention without trial, would be “ultra vires” to the Convention and to Kenya's own Schedule of Fundamental Rights.Footnote ⁶⁵

The growing tension around the use of PPS legislation finally abated on August 14, 1961, when Governor Renison grudgingly released Kenyatta from restriction.Footnote ⁶⁶ Kenyatta became KANU's leader, and Kaggia also joined the organization shortly following his release on August 23.Footnote ⁶⁷ Renison now accepted that at independence, KANU led by Kenyatta would control the bureaucratic state. Thus began KANU's shift toward acceptance of the “gatekeeper state” at independence, and acceptance of the potential usefulness of the PPS legislation. KANU elites who desired to stifle internal dissent and political opposition now had incentives to retain the “twilight” legislation. Colonial officers and new nationalist elites within KANU both desired stability for Kenya.Footnote ⁶⁸ Kenyatta and his cabinet now chose to pursue stability and continuity through the existing legal system, designating the PPS and other colonial security legislation as post-colonial institutions.

KANU's Acceptance of Security Laws

With Kenyatta, Kaggia and the other detainees freed, and KANU set to win the next general election in 1963 to decide self-government in Kenya, KANU members advocated for flexible emergency powers laws in constitutional negotiations taking place throughout 1962 and 1963. Over this period, the British colonial government concluded that a KANU government with strong powers to act against remaining threats was their best hope in securing a stable Kenyan regime suited to their geopolitical interests. Once Renison released Kenyatta, their worst fears of a resurgence in the KLFA and the “Kenyatta cult” dissipated as KANU took control of its own dissident elements and many KLFA adherents accepted Kenyatta's leadership. While KLFA secretive activities and subsequent arrests continued up to independence in December 1963, their effectiveness was reduced by Kenyatta's release and the various steps he initially took advocating for reconciliation and to address the root causes of unrest in Kenya.Footnote ⁶⁹

There would be further struggles on Kenya's journey to independence, but the PPS legislation would no longer be as controversial. The second Lancaster House Conference took place from February 14 to April 6, 1962, and resulted in a draft majimbo, or regional, constitution in the KADU model. KADU members feared domination by the majority and wanted a constitution with many checks on centralized state power, including emergency powers.Footnote ⁷⁰ KANU members, on the other hand, opposed a constitution with rigid checks and wanted a strongly centralized system.Footnote ⁷¹ In March 1962, disagreements between KANU and KADU on emergency powers emerged, but with just over a year left before independence, the two main Kenyan political parties had not debated substantive security legislation and remained divided on their views of emergency powers.Footnote ⁷² The parties did, however, find common ground on the utility of emergency powers regarding the shifta threat, which had the potential to destabilize Kenya. The Northern Frontier District (NFD), a vast, semi-arid region in Northern Kenya covering nearly half of Kenya's geographic size, had never been closely integrated within the colony in part due to its marginalization through security legislation by the British colonial administration.Footnote ⁷³ Two-thirds of the NFD's population consisted of Somali, who, in 1962, voted in a plebiscite to leave Kenya and become part of the new independent state of Somalia. When Macmillan's government rejected the plebiscite's results, some Somali decided to mount an armed insurrection, supported covertly by the Somali state.Footnote ⁷⁴ Known as shifta, these violent secessionists became a serious threat to Kenya's stability before independence. Both KANU and KADU were “opposed to any measure that would lead to secession of any part of the Northern Frontier District.”Footnote ⁷⁵ At Lancaster House, the NFD delegation, led by Alex Kholkholle and MP Abdi Khalif from Wajir North in the NFD, requested regional autonomy before any further constitutional changes occurred. Colonial officials mostly agreed with Kenyan politicians in staunch opposition to autonomy in the NFD: “there is no question in our minds but that NFD will remain part of Kenya,” declared a senior colonial official, “so long as Her Majesty's Government has any responsibility in Kenya.”Footnote ⁷⁶ There was an apparent need for strong powers in the NFD as independence loomed, and Kenyan nationalists supported this.Footnote ⁷⁷

Following the conference, debates in mid-1962 revealed disagreements between KADU and KANU on emergency powers, but time was running out to resolve such matters. What would happen if a government decided it was necessary to declare an emergency? KADU members agreed that this might necessitate a ratifying parliamentary vote after the declaration of emergency, but no agreement could be reached on how soon this vote would happen. They also disagreed on how long an emergency declaration should continue without parliamentary confirmation.Footnote ⁷⁸ On both matters, KANU members generally desired longer time periods, whereas KADU members wanted shorter timeframes for a parliamentary vote. Legal Affairs Minister Anthony Webb finally presented an exhaustive memorandum on emergency powers in August 1962. Webb proposed that the head of state should be allowed to declare an emergency initially, to be ratified by Parliament within seven days.Footnote ⁷⁹ The Council of Ministers agreed.

The status of the PPS Ordinance was determined only three months before independence. Webb advocated for substantive laws being maintained in an independent Kenyan constitution. He had disagreed in 1962 with ministers who had expressed the view that any emergency might be speedily ended, and “normal” government restored, and then pushed for the agreement that a 75% vote threshold was required in parliament to ratify emergency powers (though this would later be amended to a lower threshold).Footnote ⁸⁰ Webb's advocacy for permanent legislation under the PPS law and fewer checks on the emergency powers came from a concern that KANU members might act unconstitutionally if the constitution constrained their authority. A potential constitutional crisis distressed colonial administrators, and they were trained to avoid such a scenario. Tom Mboya, and others in KANU leadership, began to threaten unconstitutional behavior if Britain and KADU denied them the centralized bureaucracy they wanted.Footnote ⁸¹ In September and October 1962, colonial legal advisor Henry Steel and Webb both worried over the possibility of such a constitutional crisis. Webb and Steel felt that a 75% majority might result in the majority government acting unconstitutionally. To Steel, this rigidity was the better of two bad options, as they needed to allay the fears of the minority party. Yet Webb feared the demise of the independence constitution more than the dominance of the majority groups over the minority.Footnote ⁸² Webb's sentiments guided the colonial government's policies on emergency powers in the year before independence. So it was that in late November 1962, Acting Governor Griffith-Jones proposed that Kenyan Ministers lower the vote threshold required for emergency powers and increase the amount of time allowed for emergency powers before they must be renewed.Footnote ⁸³ KANU got what they wanted.

The Council of Ministers held constitutional meetings prior to Colonial Secretary Duncan Sandys’ visit to Kenya in February and March 1963. On January 10, 1963, KANU ministers and colonial advisors, among them Mboya and Webb, worried that the rigid 75% voting majority might cause a constitutional crisis.Footnote ⁸⁴ Mboya preferred a 60% majority. KANU Finance Minister James Gichuru also preferred a lower voting majority but suggested a two-thirds majority vote. Constitutional Affairs and Administration Minister and KADU leader Ronald Ngala represented KADU's overall desire to keep the high threshold to guard against an “irresponsible government.”Footnote ⁸⁵ KADU members advocated for strong checks against an oppressive government but recognized their weakened negotiating power against both the colonial government and KANU. On January 23, 1963, the Council of Ministers agreed to compromise between Mboya and Ngala's positions at a 65% majority to invoke emergency powers. The lowering of checks on central government power made Ngala and his KADU ministers increasingly concerned, telling voters “If you vote KANU you are voting for a party that will destroy the constitution.”Footnote ⁸⁶ In March 1963, the conversation turned toward the length of time between an emergency declaration and its expiration. KADU ministers like Bernard Mate had compromised on the voting threshold and did not want to extend the period of emergency past seven days.Footnote ⁸⁷ KANU ministers like Mboya agreed with Sandys’ position to extend this period. However, the disagreement between KANU and KADU meant Governor Macdonald maintained the seven-day period.

As the May 1963 elections drew closer, KANU and KADU tensions reached dangerous levels as Mboya, and other KANU officials, made it publicly clear that KANU intended to change the 1962 majimbo constitution at the October 1963 independence conference. Throughout April and May 1963, Mboya made a series of speeches and published two newspaper articles advocating for a less rigid constitution. Mboya threatened that KANU would change the constitution if they could not govern effectively.Footnote ⁸⁸ In the May elections, KANU overwhelmingly defeated KADU through their campaign to govern with strong central powers.Footnote ⁸⁹ Yet KANU's hold on power was fragile: the clash of personalities in the organization, and KADU's effectiveness in marketing the gravity of a Kikuyu-Luo dominated government for minority groups, threatened to unravel Kenyatta's proposal for unity. On June 1, 1963, the newly elected leaders took over self-government.

In late June 1963, when the Cabinet determined December 1963 as the month for independence, they still had not deliberated on the future of the PPS legislation. On August 8, 1963, Kenyatta spoke to a room of settlers at an agricultural meeting in Nakuru. To the sound of five hundred settlers stomping, cheering, and clapping, Kenyatta reassured his audience that they need not fear any change in land ownership policy.Footnote ⁹⁰ Throughout the final months before independence, he would give other speeches with similar messages under the guise of “unity.”Footnote ⁹¹ Increasingly confident about Kenyatta's “grip” on power, colonial officials now decided to maintain the PPS legislation in the transition to independence. In September 1963, Fernley Webber (head of the East African desk in London) noted with approval that colonial emergency powers and substantive legislation should be left in place for Kenya.Footnote ⁹² London did not want former colonies to inherit undemocratically invoked colonial legislation.Footnote ⁹³ But both Colonial Permanent Secretary Frank Loyd and Principal to the Colonial Office Peter Kitcatt believed there was not enough time before independence to raise this point with the Council of Ministers, as the last constitutional conference was scheduled for October, just a few weeks before independence.Footnote ⁹⁴ In Kenya's case, the revocation of colonial emergency laws did not matter because the constitution provided emergency powers. Griffith-Jones and Webber decided to break from the colonial precedent for the PPS legislation. For one, the PPS legislation was in current use at that time (to deal with the NFD), and the KANU government desired its use at independence. Griffith-Jones believed that KANU would resist the repeal of the laws and resent any arbitrary appeal overriding their objections. Thus, it would be a “pretty pedantic virtuosity” to force Kenyatta's government to pass the legislation again.Footnote ⁹⁵ The will of Kenyan elites and the unaddressed threats to the bureaucratic state during decolonization justified the retention of the PPS Ordinance from a British perspective.

Kenyatta now used the PPS to address threats to Kenyan statehood. In October 1963, KADU's potential secession and the shifta conflict in the NFD drew serious concern and violent threats. At the start of the independence conference from September 25 to October 19, Ngala became increasingly oppositional. KADU members, including Daniel Moi, made serious plans to partition sections of Kenya, and in October 1963, KADU drew up plans for violent protest.Footnote ⁹⁶ On the same day, the KANU government issued a PPS order that penalized making statements likely to cause alarm and despondency. They drafted this order ostensibly to address shifta secession claims in the NFD, but the threat to KADU was palpable.Footnote ⁹⁷ Ngala and other KADU officials feared this was a sign of greater oppression to come. Webber and Griffith-Jones advocated for the order's rescission, but KANU ministers Joseph Murumbi and Achieng Oneko refused to rescind the order.Footnote ⁹⁸ Following the conference's end, when independence was officially announced for December 12, Justus Tipis, Moi, and others continued to advocate for violent protest. However, other KADU members like Robert Matano and Masinde Muliro now opposed violence and urged cooperation, and Ngala reluctantly came to the same view.Footnote ⁹⁹ Additionally, as violence increased in the NFD, the KANU regime detained several Somali fighters without trial in October 1963, and passed substantive legislation to combat the insurgents.Footnote ¹⁰⁰

KANU's Consolidation of Power

Following Kenya's independence on December 12, 1963, Kenyatta inherited and used both emergency powers and the PPS legislation against internal and external challenges to his bureaucratic-executive state. While the threats from the shifta continued to necessitate a widely publicized use of emergency powers and substantive law, KANU's internal dissent encouraged Kenyatta's power consolidation. Though KANU received an electoral majority over KADU in the independence elections, the government was divided within. KANU's leftist elements remained a potential threat to Kenyatta's leadership over the first decade of independence. In 1964, the PPS Ordinance became the PPS Act, translating colonial legislation into independent legislation.Footnote ¹⁰¹ In late December 1963, the murder of a Kenyan soldier by shifta “terrorists” had created uproar within the Kenyan government. John David Kali, government whip and MP for Nairobi East, threatened that MPs would start their own volunteer force against the shifta if the government did not act soon.Footnote ¹⁰² Mboya advocated for imposing Emergency Regulations in the North Eastern Region (NER, as the old NFD was now named) regardless of the Senate's decision to ratify the declaration within a week, as the independence constitution required.Footnote ¹⁰³ On December 25, 1963, every KADU minister in the National Assembly blocked its passage, and prevented the declaration from reaching the 65% vote threshold required. After further negotiations between Kenyatta's Cabinet members in an emergency meeting, Governor-General Malcolm Macdonald passed a declaration of emergency on the same day.Footnote ¹⁰⁴ A week later, the National Assembly ratified the declaration, constitutionally allowing the Emergency Regulations to continue.Footnote ¹⁰⁵ The declaration of emergency effectively suspended the rule of law in the NER and brought in force the PPS Act and Public Security Regulations of 1963.Footnote ¹⁰⁶

Kenyatta employed the PPS Act and emergency powers to secure hegemony in the NER. The PPS (North-Eastern Region) Regulations of 1963 allowed for a five-mile prohibited zone along the Kenya-Somalia border, where people could not settle or move. Within this region, anyone without authorization was subject to search without a warrant and could be arrested and detained for up to twenty-eight days without trial.Footnote ¹⁰⁷ In practice, this also allowed the police to use lethal force. In April 1964, Kenya Gazette published the Kenya (North-Eastern Region) (Amendment) Regulation by applying the 1963 Public Security Regulations to the Constitution in the NER. This allowed for a constant state of emergency in the region without parliamentary approval. Further amendments to this bill in September 1964 allowed for livestock seizure, destruction of buildings and property, and expanded the area to include some districts in the Eastern and Coast regions.Footnote ¹⁰⁸

While Kenyatta and his Attorney General Charles Njonjo expanded legal powers in the NER, they worked to expand the central government's constitutional powers as well. By November 1964, Kenya was a de facto one-party state as KADU politicians joined KANU; the benefits of joining the government outweighed exclusion from power as an opposition organization.Footnote ¹⁰⁹ A year after independence, Prime Minister Kenyatta became President Kenyatta through Kenya's first constitutional amendment, which made Kenya a Republic instead of a British Dominion and consolidated power to the center.Footnote ¹¹⁰ Under this amendment, the provincial administration now fell under the new Office of the President.Footnote ¹¹¹ The second and third constitutional amendments in 1964 and 1965 completed Njonjo and Kenyatta's push toward centralized government and rid the constitution entirely of its initial majimbo structure. The third amendment also lowered the voting threshold to declare an emergency from the 65% majority to a simple majority, even lower than Mboya requested before independence.Footnote ¹¹² In March 1965, with the KADU opposition dissolved, Njonjo pushed this amendment through. Left-wing KANU members viewed the bill negatively, though they still motioned to support. Kaggia saw the amendment as an attempt “on the part of the government to bring about a dictatorship in this country.”Footnote ¹¹³ Nonetheless, the third amendment passed with 103 votes for it and only three votes against.

By this point, the KANU government had fully adopted the gatekeeping practices used by the colonial government against the Mau Mau in 1952. As Kenyatta consolidated centralized power in the bureaucratic state, he continued to employ colonial tactics against the shifta threat. The villagization techniques used in the NER to suppress the shifta borrowed directly from the Mau Mau counterinsurgency and from other previous methods used to govern the NFD as a “state of exception.”Footnote ¹¹⁴ On June 4, 1965, KANU MP and Laikipia branch chair Godfrey Gitahi Kariuki motioned in the House of Representatives to “villagize immediately all Somali […] in order to enable security forces to deal effectively with the shifta.”Footnote ¹¹⁵ Kariuki and other MPs whose districts experienced shifta attacks felt the government failed to act rapidly. In his opening statement, Kariuki referred to the colonial government's villagization of Kikuyu, saying “we must apply the same method as the Imperialist Government applied in order to defeat Mau Mau activities.”Footnote ¹¹⁶ This motion passed, and the resulting villages closely resembled those of the Mau Mau experience.Footnote ¹¹⁷

Kenyatta's consolidation of the bureaucratic-executive regime in 1964 also enabled him to suppress internal opposition.Footnote ¹¹⁸ Kenyatta had struck a careful balance after independence on land redistribution, demonstrating to settlers and outgoing British colonial officials that he would not nationalize their assets.Footnote ¹¹⁹ When Kaggia overtly criticized the government's land policies in April 1965, the police banned a rally he organized in Kahuro.Footnote ¹²⁰ Odinga's opposition was more difficult to confront. With the publication of Sessional Paper No. 10 on “African socialism,” Kenyatta attempted to outdo Odinga by touting a mixed economy approach, which welcomed foreign investment and supported earning land through hard work and cash payments.Footnote ¹²¹ Despite this, there was much popular resistance against Kenyatta on the question of land distribution. Odinga and other leftist politicians targeted KANU's land appropriation to mobilize popular opposition. In response, Kenyatta eventually stripped the vice-presidency office of most responsibilities, and then removed Odinga from this position.Footnote ¹²² Then, in March 1966, KANU's new party constitution removed the vice-president position entirely.Footnote ¹²³ On April 14, 1966, Odinga left KANU to lead a new political party, the Kenya People's Union (KPU). Having been sacked from government by Kenyatta, Kaggia then joined the KPU as its deputy president.Footnote ¹²⁴ The KPU Manifesto explicitly addressed the land problem, accusing the government of “abandoning tens of thousands of landless who have no jobs to go to.”Footnote ¹²⁵ KPU leadership demanded immediate “distribution of free land to the neediest, including squatters and those who lost their land in the struggle for independence.”Footnote ¹²⁶ These direct threats to Kenyatta rallied support for the KPU as a source of settling unanswered land grievances.

In response to the KPU's formation in 1966, Kenyatta and Njonjo developed further legal instruments to defend their position of power. The fifth amendment, passed by Njonjo on April 30, 1966, required anyone who resigned from a political party to immediately seek reelection.Footnote ¹²⁷ This provision applied to KANU members who joined the KPU. Njonjo published, tabled, and assented the law in under forty-eight hours.Footnote ¹²⁸ While politicians like Mboya and Kenyatta had previously celebrated the KADU to KANU crossovers, they now labeled KPU transfers as treacherous “political acrobats.”Footnote ¹²⁹ Many KANU deserters immediately rejoined the party,Footnote ¹³⁰ but learned that they still had to be reelected during the June 1966 “Little General Election.”Footnote ¹³¹ This election became an undemocratic referendum on land policy.

Kenya's sixth constitutional amendment strengthened the PPS Act for Kenyatta to suppress challenges to his executive power. Njonjo and Mboya claimed the law would allow the government to use emergency powers more effectively against wars and internal conflicts.Footnote ¹³² The sixth amendment updated the colonial-era PPS Act allowing for detention without trial and completely overhauled emergency powers in Kenya.Footnote ¹³³ Passed in under four hours on June 2, 1966, the bill allowed the President to use Part Three of the PPS Act and its provisions, including detention, “at any time” based on his own judgment.Footnote ¹³⁴ The amendment removed parliamentary control over emergency powers. The duration of powers expanded from 21 to 28 days. Previously, an emergency had to be renewed every eight months. Through the sixth amendment, an emergency did not require any renewal. The amendment allowed for the KANU government to acquire, occupy, or use Trust Land during an emergency.Footnote ¹³⁵ The vote took place when the KPU had vacated their seats, so the minimum required MPs were present. Former KADU members Martin Shikuku and C.B. Ngala-Abok both supported the bill but questioned the allowance of twenty-eight days for emergency powers, the ability to confiscate land, and for detention without trial. Shikuku, whom Kenyatta would later detain in 1975, stated that if power ever changed, they would be subjects of these laws. Gichuru replied that the law only applied for the current president, meaning that a future president must pass the bill again, thereby protecting the land and security of the incumbent KANU leaders. MPs Shikuku and S.T. Omar compared the detention abilities to the Mau Mau era's human rights abuses.Footnote ¹³⁶ Omar proposed revisions to check that the arbitrary detentions of that emergency did not occur again, but MP Kassim Mwamzandi requested that they vote quickly without further deliberation. Only MP G.J. Mbogoh (of Embu North) opposed the vote during the second reading, but he did not vote when the other seventy-three members unanimously approved.Footnote ¹³⁷ During the third and final reading, all seventy-four members approved of the amendment. By June 7, 1966, President Kenyatta now had practical powers to detain anyone in the KPU without trial.

Suppression of the KPU in the “Little General Election” was the collective result of Kenyatta's utilization of colonial law and constitutional amendments. The KPU won the districts it had strong recognition in, particularly in Odinga's Central Nyanza Province and the Machakos District. The KPU petitioned sixteen of the results on claims of rigging and disadvantage in the campaigns due to the new laws, but all claims were dismissed.Footnote ¹³⁸ After the election on August 4, 1966, Kenyatta used the new PPS Act's powers to detain six KPU supporters and administrators, including KPU Youth Leader J. M. Oyangi and KPU Nairobi Branch Secretary Vicky Wachira.Footnote ¹³⁹ In the following years, Kenyatta continued to use the PPS Act to detain KPU members and aides to Odinga. On April 2, 1968, Kenya police raided the KPU's offices, and later that month, Kaggia and the KPU's South Nyanza branch chairman, Gogo Ochok, were sentenced to a year of imprisonment under violation of the Public Order Act prohibiting holding a public meeting without a permit.Footnote ¹⁴⁰ In August 1968, Kenyatta invoked the Public Security (Detained and Restricted Persons) Regulations of 1966 to detain Nairobi journalist Erastus Obura and Odinga's former bodyguard, Frederick Ogai. By July 1968 there were at least eight detainees held with affiliations to the KPU,Footnote ¹⁴¹ and in October 1969, Kenyatta invoked the PPS Act to detain Odinga and other KPU members after violent protests in Nyanza.Footnote ¹⁴² Kenyatta had effectively suppressed the opposition by using colonial legislation.