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 CONFIDENTIAL

f
HIS D O C U M E N T IS T H E P R O P E R T Y O F H S R B R I T A N N I C M A J E S T Y S
GOVERNMENT)

QXEJJMLL COPY NO. ^

21 st O c t o b e r , .
i 1963

CABINET

K E N Y A

N pte.. b y j f o e S e c r e t a i ' y
t - i Q J ^ S . C^binet^

T h e a t t a c h e d R e p o r t of t h e K e n y a Independence
Conference, 1963, (Cmnd. 2156) is c i r c u l a t e d for the
information of t h e Cabinet.

(Signed) BURKE TREND

Cabinet Office, S . W . 1.

21st October, 1963

CONFIDENTIAL

 KENYA

Independence Conference

1963

Presented to Parliament by the Secretary of State for the Colonies

by Command of Her Majesty
October 1963

LONDON
HER MAJESTY'S STATIONERY OFFICE
P R I C E Is. 6d. NET
C m n d . 2156
 CONTENTS

Page
Report 3

Annex A Statement by the Secretary of State for the Colonies at

the Final Plenary Session... 4

Annex B \ Letters from the Prime Minister of Kenya to the

Annex C J Secretary of State for the Colonies 10

Annex D Amendments and Additions to be made to the

Constitution 12

Annex E List of those attending the Conference 25

 KENYA INDEPENDENCE CONFERENCE, 1963
REPORT

T h e Kenya Independence Conference met in London at Lancaster

House, under the Chairmanship of M r . Duncan Sandys, Secretary of State
for the Colonies, between 25th September and 19th October, 1963. The
purpose of the Conference was to settle the form of Kenya's constitution
on independence. A list of those attending is a t Annex E.
2. The Conference held seven plenary meetings between 25th September
and 30th September and agreed on a number of amendments to the con­
stitution, including the provisions for citizenship. During the next three
weeks the Secretary of State for the Colonies held a series of private
discussions with each of the Delegations separately.
3. At a final plenary session of the Conference on 19th October, 1963,
the Secretary of State reported the results of his discussions and explained
the amendments which it h a d been decided to make to the constitution.
(Annex A.) Full particulars of these are given at Annex D.
4. Mr. Sandys informed the Conference that he had received a letter
from the Prime Minister of Kenya (Annex B), in which the latter stated
that his Government accepted these amendments as a settlement of the
issues raised at the Conference, and that it was not his Governmenfs
intention to seek to make further amendments to the constitution except
in so far as subsequent experience showed these to be absolutely necessary.
5. The Secretary of State also circulated to the Conference a second
letter which he had received from Mr. Kenyatta (Annex C), reaffirming
the intention of the Kenya Government to transfer to the Regions, with
all possible speed, the departments and services still remaining to be
handed over. The letter contained a timetable which provided that the
greater part of these remaining transfers would be effected on 1st December,
1963 and would be completed not later than 1st January, 1964.

6. The Secretary of State noted that it was the wish of both Parties
in Kenya that, on attaining independence, Kenya should be a member of
the Commonwealth. He assured them that if this were confirmed by a
resolution of the National Assembly, the British Government would be
pleased to convey this request to the Governments of other Common­
wealth countries.
7. The Kenya Government declared that it was their desire that Queen
Elizabeth II should become Queen of independent Kenya. Mr. Sandys
undertook to convey this request to Her Majesty.
8. Finally Mr. Sandys confirmed that 12th December, 1963, would be
the day of Kenya's independence.
 ANNEX A

S T A T E M E N T BY T H E S E C R E T A R Y O F S T A T E F O R T H E C O L O N I E S
A T T H E F I N A L P L E N A R Y SESSION

" In the plenary sessions during the first stage of the Conference, agree­
ment was reached on most of the amendments and additions to the con­
stitution which are necessary to effect Kenya's change of status from self­
government to independence. Certain other amendments, mostly uncon­
troversial, but by no means unimportant, were also agreed.

2. In addition, the Government of Kenya proposed a number of further

amendments which, they considered necessary, in order to make the con­
stitution workable.
3. The K A D U Opposition delegation recognised in principle that, if
the constitution was not workable, amendments which could be shown
to be necessary must be made. However, they did not consider that the
further amendments proposed by the Kenya Government were justified,
and they therefore refused to discuss them. In their view all necessary
decisions of substance had been taken at the Lancaster House Conference
in 1962, at which the " Framework " of the constitution was agreed.

4. It was thus clearly impossible to make further progress in plenary

sessions. I therefore decided to pursue the discussions separately with
each delegation, in an endeavour to reach agreement. These difficult and
protracted talks have been proceeding for 18 days, and the time has now
come to take decisions.

5. The Constitutional Framework, agreed between all parties in 1962,

declared that the objective is " a united Kenya nation, capable of social
and economic progress in the modern world—a Kenya in which men and
women have confidence in the sanctity of individual rights and liberties,
and in the proper safeguarding of the interests of minorities ". Throughout
these discussions, the problem has been to reconcile the first and the last
phrases of that declaration—on the one hand, to create a united Kenya
nation and on the other, to safeguard the interests of minorities.

6. As was to be expected, the Kenya Government have been primarily

concerned with national unity, and the Opposition with minority safe­
guards. In support of their amendments, the Kenya Government have
drawn attention to paragraph 7 of the Constitutional Framework, which
states that " there should be a strong and effective Central G o v e r n m e n t " ,
whereas the Opposition have based themselves on paragraph 9, which
states that " there should be the maximum possible de-centralisation of
the powers of Government to effective authorities capable of a life and
significance of their own ".
7. As Secretary of State for the Colonies, I have during this past
fortnight been acutely aware of the critical nature of the decisions to be
taken, and of the heavy responsibility which rests upon me. In discharg­
ing this task, I have been guided by one thought, only, to do what is
best for the people of Kenya.
 8. Throughout I have fully recognised that the Constitutional Frame­
work of 1962 was approved by both the Kenya parties and by the British
Government, and embodied a number of keenly debated compromises. It
was, therefore, important that no changes should be made which conflicted
with the provisions of this basic document, unless they could be shown to
b e not merely desirable, but necessary, in order to make the constitution
workable.
9. In the case of proposals for amendments which did not conflict with
the terms of the Framework, I felt that a somewhat more flexible approach
was permissible. At the same time I considered it my duty to weigh
carefully the possible effects of any changes upon the delicate checks and
balances which the constitution was designed to provide.
10. On the basis of these criteria, I reached the conclusion that there
were a certain number of amendments which needed to be made. Full
particulars of these amendments have been circulatd to the Conference
(Annex D). I will refer only to the most important of them namely those
concerned with the police, the public service, and the procedure for amend­
ing the constitution.
11. Of all the amendments I had to consider, the most difficult were
those relating to the Police. The difficulty arose from two conflicting
considerations. On the one hand, I h a d to recognise that the maintenance
of law and order is one of the basic responsibilities of government and
that consequently the efficiency of the police organisation is a matter of
vital importance. On the other hand, I was faced with the agreed Frame­
work of 1962, which set out in the utmost detail a scheme for the distribu­
tion of police control between the Central Government and the Regions. I
took the view that, in the interests of public safety, any changes must be
made which were necessary to enable the police efficiently to perform
their duties. However, owing to the anxiety and suspicion which sur­
rounds this question, I did not consider that I would be justified in making
any amendments which were not essential for this purpose.
12. Before coming to a decision, I asked the Inspector-General of the
Kenya Police Force to come to L o n d o n and thoroughly discussed the
problem with him. As a result, I reached the conclusion that several of
the amendments to the police organisation proposed by the Kenya Govern­
ment, although desirable, could not be said to be absolutely necessary.
On the other hand, a completely convincing case was made out for a
few important changes.
13. T h e first is concerned with the establishments of the Central
and Regional contingents of the police. In order to ensure that n o
Region should build up an excessive police force, the Framework provided
that the maximum strength of each contingent should be laid down by the
National Security Council, which is composed of a Minister of the Central
Government and one representative of each of the seven Regions. But it
is equally important that the overall strength of the police in Kenya should
not be allowed to fall below a reasonable level, and that all parts of the
country should bear their fair share of the expense. For this reason, I
consider that the National Security Council should be charged with the
duty of fixing not merely the m a x i m u m strengths but the actual establish­
ments of the Central and Regional contingents.
 14. The second change relates to the transfer of police from one con­
tingent to another. T h e Framework provided that, except in the case of
gazetted officers of whom there are only about two hundred, the Inspector-
General of the Kenya Police should not have the right to make any
transfers without the consent of the Regional Commissioner concerned.
It is clearly necessary that the Inspector-General should be able without
hindrance to draw freely upon the Regional contingents, in order to secure
sufficient a n d suitable personnel to m a n the all-important mobile reserve
of General Service Units and the specialised branches, for which he is
directly responsible. I consider it, therefore, essential that he should be
empowered t o post all ranks of the Police Force into or from any Regional
contingent.

15. Thirdly, there is the question of the Inspector-General's rights to

move police reinforcements from one part of Kenya to another. The
Framework provided that, before doing so, he must obtain the consent
of the Law and Order Committee of the Region concerned, or failing that,
he must within 48 hours secure the approval of the National Security
Council; otherwise, the reinforcements must be withdrawn. Recent ex­
perience has shown that these restrictions on the movement of police are
quite incompatible with the efficient maintenance of law and order, and
there is a clear case for their abolition.
16. There is another important amendment in the security organisa­
tion which I consider should be made. The Framework provided that
the independent Police Service Commission should be responsible for the
recruitment, promotion and discipline of officers of the Gazetted ranks
throughout Kenya. From the inquiries I have made, I am satisfied that,
in order to make proper use of the limited officer material available, the
Commission^ sphere of responsibility should be extended to include the
Inspectorate ranks. This would mean that about 1,000 police officers out
of a total force of about 10,000 would come within the purview of the
Police Service Commission. The other nine-tenths, up to and including
the rank of sergeant, would continue, as at present, to be recruited, pro­
moted and disciplined by the Regional Commissioner within the Regional
contingent.
17. In the sphere of the Public Service there are also certain amend­
ments which I consider should be made. These do not involve a departure
from the terms of the Framework, which reads as follows: —
" The constitution would entrench appropriate provisions to ensure
the independence of the Public Service from political control. Suit­
able arrangements will have to be worked out to meet the staffing
needs both of the Central Government and the Regional Authorities."

18. The present arrangements were not agreed between the parties
and are based on an earlier ruling of my own. They provide for eight
Public Service Commissions (one for the Centre and one for each Region).
Each is composed of seven members, four of whom are common to all the
Commissions and are appointed by a procedure that ensures their in­
dependence. These arrangements are undoubtedly most unwieldy. They
make it difficult to distribute the talent available to the best advantage and
are likely to discourage new entrants. Moreover, they have been severely
criticised by the Civil Service unions.
19. For these reasons I a m satisfied that there should b e a single
Public Service Commission, composed of seven independent members, all
of whom should be appointed in the same manner as the four independent
members are at present.

20. If Civil Servants are to be easily movable from one employing

authority to another, as was always envisaged, there must be common
qualifications and standards throughout Kenya, particularly in regard to
pay and conditions of service. These should be prescribed by the National
Assembly.
21. Before making a posting, the Public Service Commission should be
required to consult the Regional authority concerned and should endeavour,
as far as practicable, to meet their wishes in regard to any special attributes,
such as knowledge of a particular language. T h e Region should not be
entitled to insist on tribal connections as a qualification. However, the
Commission should be required, as at present, to endeavour to secure that,
so far as is practicable, the staff on the Central Government establishment
should include a reasonable number of persons from each Region, and
that the staff of a Region should include a substantial proportion of persons
drawn from that Region.
22. Finally, I had to consider to what extent the various provisions
of the constitution should be entrenched.
23. During the period of internal self-government, the Kenya legisla­
ture had no power to amend its constitution. Consequently this issue d i d
not arise in the Nairobi constitutional talks last spring. On the other
hand, the Framework did deal specifically with this question. It provided
that, except with a 75 per cent vote in the House of Representatives and a
90 per cent vote in the Senate, n o amendment should be m a d e to the
" entrenched rights of individuals, Regions, Tribal Authorities or Districts ",
and that all other amendments should require a 75 per cent vote in each
House.
24. I was satisfied that the high level of entrenchment proposed in the
Framework, although unusually stiff in comparison with other constitu­
tions, should be maintained for the following basic items :
— the rights of the individual (including the judiciary and citizenship)
— tribal authorities (including the all-important tribal land rights)
— districts (including the Senate for which the Districts form the
electoral constituencies).
25. I felt also that it was right that the structure of the Regions (i.e.
the provisions governing Regional boundaries, and the composition of the
Regional Assemblies) should similarly be included in the highest category
of entrenchment. However, I found it hard to convince myself that it
was appropriate to attach the same degree of immutability to the sections
of the constitution which define in detail the various powers of the Regional
Assemblies.
7
 26. T h e formulation of Kenya's unique constitution, which is neither
federal nor unitary, has raised problems on which there are no exact pre­
cedents or experience to guide us, particularly with regard to the allocation
of functions between the Centre and the Regions. It must, moreover,
be recognised that the present provisions are the product of inter-party
bargaining, rather than of any objective planning. It is, therefore, not
surprising that some unworkable features have already revealed them­
selves ; and it is certain that, as time goes on, others will emerge. There
is therefore a strong case for leaving some element of flexibility, so that
corrections can b e made in the light of experience.
27. I felt it my duty to consider not merely the formula agreed in 1962,
but also the purpose which it was intended to serve, namely to make the
constitution more durable. If the constitution is so rigid that necessary
changes are m a d e virtually impossible, there is the danger that frustration
may drive people to amend it b y unconstitutional means. Once a breach
is made in any part of the constitution, the whole of the remainder is liable
to crumble. T h u s the over-entrenchment of rights which are not funda­
mental, could well result in the destruction of the basic liberties which it is
our prime aim to protect.
28. In view of the significance attached to the Framework, I felt that
it was important to maintain as nearly as possible the procedure it pre­
scribed for the amendment of the constitution. I therefore considered it
desirable to retain the percentage of votes laid down in the Framework for
Category I (90 per cent, in the Upper House and 75 per cent, in the Lower
House) and Category II (75 per cent, in each House). However, in order
to permit somewhat more flexibility, I came to the conclusion that, in
Category II, the alternative of a two-thirds majority in a nation-wide
referendum should be provided.
29. Ultimately the strength and durability of any constitution depends
upon the respect it enjoys among those who work it, and the con­
fidence it inspires among those who look to it for protection. That is
why I attach special importance to the letter I have received from
Mr. Kenyatta, in which he informs me that the Government of Kenya accepts
the amendments which it is proposed to make as a settlement of the issues
raised in this Conference, and that it is not their intention to make further
amendments to the constitution, except in so far as these are shown to be
absolutely necessary in the light of subsequent experience.
30. As further evidence of the Government of Kenya's desire to allay
anxieties, they have, in another letter to me, announced a timetable for the
rapid completion of the process of implementing the present constitution.
They propose to hand over most of the remaining Regional powers to the
Regional Authorities on 1st December, and the remainder not later than
1st January, 1964.
31. I know that there are some w h o will consider it wrong of the
British Government to approve any departure whatsoever from the provi­
sions previously agreed. I fully understand their feelings ; and I can
assure them that before taking any decision we most earnestly considered
our obligations. A s a result we came to the clear conclusion that it was
our duty to do what was in the best interests of Kenya in the years ahead.
 32. I sincerely believe t h a t the amendments on which we have decided
will make the constitution n o t only more workable but also more durable.
T h e willing acceptance of this settlement by the Kenya Government will
increase confidence in the country's political stability and will, more than
anything else, contribute to the safety of the minorities, whose interests
have been so much in our minds. I am firmly convinced that for Kenya
and all her peoples the advantages of this settlement will more than justify
the constitutional amendments which have been made to secure it.
33. I conclude by confirming that 12th December, 1963, will b e the day
of Kenya's independence.
 ANNEX B

19th October, 1963.

The Secretary of State for the Colonies
and Commonwealth Relations,
LONDON.

Dear Mr. Sandys,

N o w that we come to the end of the Conference I a m glad to be able
to inform you that the Kenya Government accept the amendments which
are now proposed to the Kenya Constitution as a settlement of the issues
which have been raised at the Conference. It is not our intention to seek
to make further amendments to the constitution except in so far as sub­
sequent experience shows these to be absolutely necessary.

Yours sincerely,
(Signed) JOMO KENYATTA,
Prime Minister.
 ANNEX C
19th October, 1963.
The Secretary of State for the Colonies
and Commonwealth Relations,
LONDON.

Dear Mr. Sandys,

As promised, I am writing to let you know my Government^
intentions concerning the implementation of the constitution.
I wish first to re-affirm our intention to transfer to the Regions with
all possible speed the departments and services still remaining to b e
handed over. In order to effect this the following programme will be
carried o u t : —
(a) A committee will be set up immediately under the chairman­
ship of an official nominated by the Prime Minister which will
include representatives of the Government Departments con­
cerned and of each Region. This committee will work out the
sizes of the Central Government and Regional establishments
and settle outstanding questions regarding the transfer of per­
sonnel, records, equipment, and other relevant matters. T h e
committee v/ill complete its work and report its decisions not
later than 15th November, 1963.
(b) Action will then be taken at once by each of the Ministries
affected to implement these decisions. It is intended that all the
departments and services concerned will, with the exception of
Education, be transferred to the Regional authorities on
1st December, 1963, save for those few services which, for
administrative reasons (e.g. the time taken to complete the
physical transfer of equipment and records and, in some cases,
personnel), cannot be fully transferred on that date. The transfer
of these remaining services will be completed not later than
31st December, 1963. All the officers concerned in carrying out
Regional functions will come under the control of the Regional
authorities as soon as the service for which they are responsible
is transferred.
(c) T h e Treasury will arrange for the transfer by 30th November of
the necessary funds to the Regions to cover the relevant services
from 1st December.
(d) T h e appropriate educational services will similarly be trans­
ferred to the Regional authorities on 1st January, 1964.
(e) In so far as it is necessary in order to implement the transfer
of responsibilities, staff and funds in accordance with this time­
table, the powers provided in Section 11 of the Kenya Order in
Council 1963 will be employed.
Yours sincerely,
(Signed) J O M O K E N Y A T T A ,
Prime Minister.
 ANNEX D

A M E N D M E N T S A N D A D D I T I O N S TO B E M A D E TO T H E

CONSTITUTION

(Items marked * were agreed in plenary meetings of the Conference)

*Agriculture
1. T h e constitution should be amended so as to give both the Centre and
the Regions concurrent legislative and executive responsibility in respect of the
prevention of cruelty to animals.
2. T h e present provisions relating to the composition of Agricultural
Commodity Boards should be amended so as to ensure, first, that every
Region which produces the crop in question would be represented on the
Board ; secondly, that Regional representatives must themselves be producers
of the crop ; and, thirdly, that the tenure of office of members of a Board
would be two years, half of the members of the Board retiring each year.
3. T h e representative of each Region on the Agricultural Finance Corpora­
tion should be appointed by the President of the Regional Assembly from a
panel of three names submitted to him by the Regional Agricultural Board.

* Appointment of Attorney-General, Permanent Secretaries and Secretary to

the Cabinet
4. The Attorney-General, the Permanent Secretaries and the Secretary to
the Cabinet should be appointed on the advice of the Public Service Commis­
sion, but before tendering advice for this purpose the Public Service Com­
mission should be obliged to consult the Prime Minister.

Apportionment of Local Government Assets

5. T h e constitution should be amended by the addition of a provision
empowering a Minister of the Kenya Government to arbitrate on the appor­
tionment of assets and liabilities of local government authorities necessitated
by an alteration of Regional boundaries, in cases where the Regions con­
cerned have failed to agree and in the absence of any other agreed method
of arbitration.

*Attorney-GeneraI
6. T h e Attorney-General should continue to be a civil servant. H e should
b e responsible in his own unfettered discretion for criminal prosecutions and
matters connected with such prosecutions but, subject to that, his depart­
ment should be within the responsibility of a Minister.

Audit of Local Government Accounts

7. T h e constitution should be amended to provide, in accordance with
the recommendation of the Controller and Auditor-General, that local
government accounts should be audited by persons appointed by the
Central Government.
*Boundary Descriptions
8. The provisions in the present constitution defining the exact boundaries
of the Districts and the Regions should be altered in the following respects: —
(a) certain agreed alterations should be made to the boundaries of the
Bungoma and Busia Districts ;
(b) a n agreed alteration should be made to the boundary between the
Coast Region and the Eastern R e g i o n ;
(c) various technical improvements should be made in the detailed
description of the boundaries ;
(d) the boundaries of the Regions should be defined only by reference to
the Districts which they comprise.

Central Land Board

9. The Chairman and the Deputy Chairman of the Central Land Board
should be appointed on the advice of the Minister responsible for land
settlement.

10. The member of the Board representing landowners should be

appointed on the advice of the Minister responsible for land settlement after
consultation with appropriate bodies representative of landowners.

*Citizenship
11. Provisions relating to Kenya citizenship should be incorporated in
the constitution itself and should be on the lines indicated below. Where no
specific proposal to the contrary is made below, the citizenship provisions
should follow the equivalent provisions in the constitutions of Tanganyika
and Uganda.

A. Citizenship by Operation of Law. The following should auto­

matically become citizens on Independence Day: ­
(i) any person born in Kenya, one of whose parents was born in
Kenya, who is at independence a citizen of the United
Kingdom and Colonies or a British protected person ;
(ii) any person born outside Kenya whose father qualifies for
citizenship under (i) above ;

The following persons born after independence should auto­

matically become citizens at b i r t h : —
(iii) any person born in Kenya ;
(iv) any person whose father is a Kenya citizen at the date of
that person's birth.
B. Citizenship by Registration. The following should be entitled, on
application in the manner prescribed by a law made by the Kenya
Government, to become citizens by registration : —
(i) any person who is a citizen of the United Kingdom and
Colonies or of the Republic of Ireland and is lawfully
 ordinarily resident in Kenya at independence otherwise than
under the authority of a temporary pass. A person who
is qualified to register as a citizen in this category only
should be allowed two years within which to elect whether
or not he will so register ; after that period such a person
could acquire Kenya citizenship only by naturalisation.
During this period such a person should not only n o t be
treated as an alien but (without prejudice to his position
by virtue of sub-paragraph E below) should be treated as a
Kenya citizen for all purposes of the constitution except
the right to be registered as a voter in elections for, or to be
elected as a member of, either House of the National
Assembly or Regional Assemblies ;

(ii) any person who has been lawfully ordinarily resident in

Kenya for such period (whether before or after indepen­
dence) and under such authority as may be prescribed by a
law made by the Kenya Parliament, if such person is a
Commonwealth citizen (including a British subject without
citizenship) or is a citizen of any State in Africa which
allows Kenya citizens to become its own citizens by
registration and is declared so to do by the Kenya
Government;

(iii) any person b o r n in Kenya who does not become a citizen by

operation of law under sub-paragraph A (i) above because
neither of his parents was born in K e n y a ;

(iv) the following w o m e n : ­

(a) any woman who, after independence, marries a Kenya
citizen ;
(b) any woman who, at independence, is or has been
married to a person who becomes a Kenya citizen by
operation of law at independence or who, if he had
not died before independence, would then have
become a citizen by operation of law ;
(c) any woman who, at independence, is married to a
person who subsequently becomes a Kenya citizen by
registration under paragraphs (iii) and (vi): the right
to register under this head should be available only
for such period after her husband's registration as
may be prescribed by or under a law m a d e by the
Kenya P a r l i a m e n t ;
(d) any woman who, at independence, has been married
to a person who becomes or would but for his death
have been entitled to become a Kenya citizen by
registration under paragraphs (iii) and (vi) but whose
marriage has been terminated by death or dissolution :
the right to register under this head should be avail­
able only in the first two years after independence ;
 (v) any person, one of whose parents is a Kenya citizen at the
date of application for registration ;
(vi) any person who, before independence, was naturalised or
registered in Kenya as a citizen of the United Kingdom and
Colonies ;
(vii) any person being only qualified to register as a citizen of
Kenya in accordance with any law made by the Kenya
Parliament.
T h e right of registration conveyed by paragraphs (iii) and (vi)
above should be available only in the first two years after
independence.

C. Citizenship by Naturalisation. The following should be eligible on

application in the manner prescribed by a law made by the Kenya
Parliament to become citizens by naturalisation: —
(i) any person who has been lawfully ordinarily resident in
Kenya for the 12 months immediately preceding his appli­
cation and, in all, for four out of the preceding seven
years ; is of good character ; possesses a sufficient know­
ledge of S w a h i l i ; and intends, if he is granted naturalisation,
to continue to reside in Kenya ;
(ii) any person being only qualified to apply for naturalisation
as a citizen of Kenya in accordance with any law made by
the Kenya Parliament.

D. Commonwealth Citizens. Kenya citizens should be Commonwealth

citizens.

E. Reciprocal Privileges. A citizen of any Commonwealth country, and

a citizen of any foreign country which the Kenya Government may
specify for this purpose, should have the same rights and privileges
(being rights and privileges which, under the Kenya Constitution or
any other law, are enjoyed by Kenya citizens) as a Kenya citizen
has under the constitution or any other law of the country concerned.
A certificate of the appropriate Ministry should be prima facie
evidence for the purposes of this provision on the question whether
a Kenya citizen is entitled under the constitution or any other law
of any other country to any right or privilege.

F . Dual Citizenship. T h e Kenya Constitution should not permit dual

citizenship. Accordingly, a citizen of another country (whether a
foreign country or a Commonwealth country) should not be able to
acquire Kenya citizenship by registration or naturalisation unless
he renounced his other citizenship within three months of his
acquiring Kenya citizenship: if he failed to do so, he should lose
his Kenya citizenship at the end of the three months. Moreover,
a person who possessed Kenya citizenship by operation of law
and who also possessed another citizenship should be required to
renounce his other citizenship within a period of two years from
 (v) any person, one of whose parents is a Kenya citizen at the
date of application for registration ;
(vi) any person who, before independence, was naturalised or
registered in Kenya as a citizen of the United Kingdom a n d
Colonies ;
(vii) any person being only qualified to register as a citizen of
Kenya in accordance with any law made by the Kenya
Parliament.
The right of registration conveyed by paragraphs (iii) and (vi)
above should be available only in the first two years after
independence.

Citizenship by Naturalisation. The following should be eligible on

application in the manner prescribed by a law made by the Kenya
Parliament to become citizens by naturalisation: —
(i) any person who has been lawfully ordinarily resident in
Kenya for the 12 months immediately preceding his appli­
cation and, in all, for four out of the preceding seven
years ; is of good character ; possesses a sufficient know­
ledge of S w a h i l i ; and intends, if he is granted naturalisation,
to continue to reside in Kenya ;
(ii) any person being only qualified to apply for naturalisation
as a citizen of Kenya in accordance with any law m a d e by
the Kenya Parliament.

Commonwealth Citizens. Kenya citizens should be Commonwealth

citizens.

Reciprocal Privileges. A citizen of any Commonwealth country, and

a citizen of any foreign country which the Kenya Government may
specify for this purpose, should have the same rights and privileges
(being rights and privileges which, under the Kenya Constitution or
any other law, are enjoyed by Kenya citizens) as a Kenya citizen
has under the constitution or any other law of the country concerned.
A certificate of the appropriate Ministry should be prima facie
evidence for the purposes of this provision on the question whether
a Kenya citizen is entitled under the constitution or any other law
of any other country to any right or privilege.

Dual Citizenship. T h e Kenya Constitution should not permit dual

citizenship. Accordingly, a citizen of another country (whether a
foreign country or a Commonwealth country) should not be able to
acquire Kenya citizenship by registration or naturalisation unless
he renounced his other citizenship within three months of his
acquiring Kenya citizenship: if he failed to do so, h e should lose
his Kenya citizenship at the end of the three months. Moreover,
a person who possessed Kenya citizenship by operation of law
and who also possessed another citizenship should be required to
renounce his other citizenship within a period of two years from
 the relevant event (e.g. in the case of a person who is a dual
citizen by birth, his attaining the age of 21) or such greater
period as might be allowed in any particular case. T h e Kenya
citizen who voluntarily acquired another citizenship should auto­
matically forfeit his Kenya citizenship.

G. Deprivation and Renunciation of Citizenship. The appropriate

Minister should be empowered, in accordance with the provisions
of any law enacted by the Kenya Parliament, to deprive of his
Kenya citizenship a person w h o is a citizen by registration or
naturalisation. The grounds upon which deprivation might take
place would be set out in the constitution and should be the
following: —
(a) disloyalty or disaffection towards Kenya ;
(b) trading with an enemy or association in a business carried
o n in such a manner as to assist a n enemy in any war in
which Kenya is engaged ;
(c) imprisonment for not less than 12 months within the first 5
years after becoming naturalised or registered ;
(d) being ordinarily resident in foreign countries for a con­
tinuous period of 7 years without annually registering an
intention to retain Kenya citizenship ; and
(e) fraud, false representation or the concealment of any
material fact in the obtaining of naturalisation or
registration.
The constitution should also contain a provision empowering the
Kenya Parliament to regulate the manner in which Kenya citizens
may renounce their citizenship.

""Compulsory Acquisition
12. T h e provision in the chapter on fundamental rights in the present
constitution which deals with compulsory acquisition of property should be
amended so as to permit the Chief Justice to regulate the time within which
applications to the courts should b e made.

Co-ordinating and Advisory Services

13. T h e power of the Central Government under the present constitution
to organise and provide co-ordinating and advisory services with respect to
matters that are within the exclusive executive competence of the Regions
should b e expanded so that the Kenya Parliament would be authorised to
make laws providing for the establishment of bodies for this purpose on
which the Regions would be required to b e represented.

*Crown Land
14. T h e constitution should be amended so as to assimilate the position
of Crown land in the former Northern Province to that of Trust land in
other parts of Kenya.
"Education
15. The following alterations should be m a d e in the provisions of the
present constitution dealing with responsibility for e d u c a t i o n : —
(a) the Central Government and the Regions should have concurrent
executive responsibility in respect of the maintenance of educational
standards;
(b) the Centre and the Regions should have concurrent legislative and
executive responsibility for public examinations at any level of
education;
(c) the provision which secures to the Centre exclusive legislative and
executive responsibility for secondary technical schools that provide
boarding facilities should be transferred from Schedule 5 to the
appropriate place in Schedule 4 of the constitution ;
(d) the provision which secures to the Centre exclusive legislative and
executive responsibility for the Siriba College should b e transferred
from Schedule 5 of the constitution to the appropriate place in
Schedule 4 ;
(e) the Centre should be given exclusive legislative and executive respon­
sibility for regulating the terms and conditions of employment of
teachers.

*Eniorcement o£ the Authority of the Central Government

16. The provision in the present constitution which permits the Central
Government to give directions to Regions to ensure that the executive
authority of the Regions should be exercised^ in conformity with Central
Laws applying to the Regions should be expanded so as to enable the
Central Government to give directions to a Region if these appear to the
Government to b e necessary for the performance of any function in relation
to a matter within the executive authority of the Government, being a
function which falls to be performed within a Region.

17. The constitution should also contain a provision enabling the Central
Government, if they considered that any such direction was not being com­
plied with, to appoint to the Region in question a Special Commissioner
who would be empowered to take over and carry out any function or service
in respect of which the directions had been given. T h e Special Commissioner
should himself b e able to give directions for this purpose to officers and
authorities (including local government authorities) of the Region and to
make use of officers and authorities of the Central Government. The
power thus vested in a Special Commissioner should expire within six
months but it might be extended, for further periods of not more than six
months at a time, by a resolution of the Senate.
18. The constitution should also include a provision permitting the
Minister concerned to give such directions direct to the appropriate officers
or authorities of the Region as well as to the Regional Assembly in any
case where he was reasonably satisfied that prompt action was required
in order to avert a serious threat to the public welfare caused by an outbreak
of disease o r other natural catastrophe.
Executive Authority of the Regions
19. T h e constitution should provide that the executive authority of a
Region should be vested in the Finance a n d Establishments committee
of the Regional Assembly.
*ExpIosives
20. The constitution should provide that explosives should become wholly
a central responsibility.
Farm Planning Advisory Service
21. The provision in the present constitution which makes farm planning
advisory services a wholly Regional responsibility should be modified to
the extent that farm planning advisory services in connection with resettle­
ment should become a matter on which the Centre and the Regions would
have concurrent legislative and executive responsibility.
*Fisheries
22. The constitution should provide that fishery services should be a
matter within the concurrent legislative authority of b o t h the Centre and
the Regions although the Regions would continue to have exclusive executive
authority. This should not apply to the Fish Culture F a r m at Sagana, the
Trout Hatchery on the Sagana river or Trout Fisheries all of which would
remain a wholly Central responsibility. These provisions should replace
the provisions in the present constitution relating to fishery services.
Gazettes
23. T h e constitution should provide that there should b e a Kenya
Gazette maintained and published by the Central Government. It should
be the duty of the Central "Government to publish in the Kenya Gazette
every matter that is required b y law to b e gazetted, either by the Centre
or by a Region. The foregoing would b e without prejudice to the right
of the Regions and the Centre to publish such matters in any additional
way they thought fit and to publish any other matters in any other way.
T h e constitution should also provide that a Regional law should not come
into operation until it had been published in the Kenya Gazette ; but
it should be the duty of the Regions to send laws for publication and if
a law was not published within nine days of receipt (or, if the President
of the Regional Assembly certified that the coming into operation of the
law was a matter of urgency, within two days of receipt), it could b e
published in any other way prescribed b y the President of the Regional
Assembly and the law would then come into operation on such publica­
tion unless a later date was prescribed therein.
Graduated Personal Tax
24. T h e provisions of the constitution relating to the imposition and
collection of Graduated Personal Tax should be amended in the following
respects :—
(a) Where a person is resident in one local government area but is
employed in another (whether in the same Region or not) the tax
should be collected by his employer at the rate fixed for the area
of employment. The employer would pay the tax to the local
government authority of the place of employment and that
 authority would then be required to remit it to the local govern­
ment authority of the t a x p a y e r s residence.
(ft) Where a taxpayer has a residence in more than one local govern­
ment authority area (whether or not in the same Region), e.g.
where he himself resides in one place b u t maintains a wife and
family in another, the tax which he pays should be divided in
equal shares between the local government, authorities concerned.
(c) A married woman's income should be regarded as that of her
husband for the purpose of this tax.
(d) Even where a person pays tax to local government authorities in
more than one Region the total tax which he pays in respect of
any calendar year should not exceed 600 shillings or such greater
amount as the Kenya Parliament may prescribe.
(e) T h e Kenya Parliament should be empowered to make laws estab­
lishing the necessary machinery to give effect to the foregoing
arrangements.

Health
25. T h e subject " medical research and t r a i n i n g " should be added
to the concurrent list (Part I I of Schedule 4 and Schedule 5).
26. T h e following six hospitals, which provide the main training facili­
ties outside Nairobi, would become the exclusive responsibility of the
Central Government and would be added to the list of exceptions in para­
graph (a) of item 17 of Part I of Schedule 4 of the constitution: —
(a) Coast General Hospital
(b) Machakos Hospital
(c) Nyeri Hospital
00 N a k u r u Hospital
(e) Kisumu Provincial Hospital
(f) Kakamega Hospital.

Local Authority Loans

27. T h e constitution should require local authorities to apply for loan
permission through the Regional Assembly, who should transmit the applica­
tion to the Local Government Loans Authority with their recommendation.

Local Government Staff Commission

28. T h e constitution should be amended to provide for the establish­
ment of a Local Government Staff Commission which would consist of
one member appointed by the President of each Regional Assembly, one
member appointed by the Nairobi City Council, two members appointed by
the Association of Local Government Authorities of Kenya, and three
members appointed by the appropriate Minister after consultation with local
government staff associations or trade unions. This Commission should have
the following functions :—
(a) to manage the staff provident fund of any local government
authority;
(b) to assist in the recruitment of staff for any local government authority
which so r e q u e s t e d ;
(c) to advise on all matters relating to the salaries and other terms a n d
conditions of service of local government staff if so requested by the
Central Government or, as the case may be, by the Regional Assembly
concerned or by the local government authority concerned ;
(d) to arbitrate, if requested by the parties, in any dispute between local
government authorities on the one hand and local government staff
associations or individual local government officers on the o t h e r ;
and
(e) if so authorised by a law made by the Kenya Parliament in the case
of the Nairobi City Council or by the Regional Assembly in the
case of any other local government authority, to appoint, promote
and discipline the staff of the local government authority concerned.
National Assembly
29. T h e constitution should provide t h a t : —
(a) Ministers (but not Parliamentary Secretaries) should have the right
to address and answer questions in either House of the National
Assembly but not to vote except in the House of which they are
m e m b e r s ; and
(b) the Attorney-General, though a n official, should b e a n ex-officio
member of the House of Representatives without the right to vote
and should have the same right as Ministers to address the Senate
and answer questions.
National Plans for Social Development
30. T h e constitution should provide that the implementation of social
development projects forming part of a National Development plan,
approved by the National Assembly a n d financed from Central Govern­
ment funds, should be a matter on which the Centre and the Regions
should have concurrent legislative and executive responsibility.
North-Eastern Region
31. Transitional provision should be made to give the people of the
North-Eastern Region a fresh opportunity to elect a Regional Assembly,
either before or shortly after Kqnya achieved independence, and to send
representatives to the National Assembly. Pending such elections, the
powers at present exercised by the Governor should, after independence,
be exercised on the advice of the Prime Minister.
Police
32. T h e constitution should provide that: —
(a) T h e National Security Council should fix the actual establishment of
each Regional contingent, of the Nairobi contingent and of the
specialised branches instead of, as at present, fixing maximum
strengths.
 (b) If the Inspector-General considered that the interests of public order ­
in Kenya so required, he should be empowered to send police
reinforcements to any part of Kenya from another without having to
obtain the consent of Regional Law and Order Committees or the
National Security Council.
(c) T h e functions of the National Security Council under Section 149 (1)
of the constitution should be confined to the duty to keep under
constant review all matters relating to the organisation, mainten­
ance and administration of the Police Force, and the making of
recommendations thereon.
(d) T h e Inspector-General should b e empowered to post all ranks of
the Police Force into or from any Regional contingent, subject to the
proviso that, in the case of the appointment of a Regional Com­
missioner, the Inspector-General should be required to consult the
L a w and Order Committee of the Region.
(e) T h e present responsibility of the Police Service Commission for
appointments, promotions, discipline and removal of gazetted officers
should b e extended to cover officers of the inspectorate ranks.

Prerogative of Mercy
33. T h e Prerogative of Mercy should be exercised in accordance with the
ad\ice of the Minister responsible for justice who would be advised by an
Advisory Committee. T h e composition of this advisory committee would
be the same as under the present constitution except that the Minister
responsible for justice would replace the Deputy-Governor and would be the
chairman of the committee.

Procedure for Amendment of the Constitution

34. T h e constitution should provide that a majority of 75 per cent, of all
the members of the House of Representatives and 90 per cent of all members
of the Senate should be required for the following provisions:—

Rights of Individuals
(a) The provisions declaring and protecting Fundamental Rights and
Freedoms of the Individual.
(b) The provisions regulating the acquisition, etc. of Kenya citizenship.
(c) The provisions regulating the structure and composition of the
courts, the appellate system, the mode of appointment, tenure of
office and terms of service of the judiciary and the composition and
functions of the Judicial Service Commission.

Regions
(a) The provisions determining the boundaries of the Regions and
regulating the procedure for altering those boundaries.
(b) The provisions regulating the structure, composition, franchise and
procedure (including financial procedure, i.e. Part 2 of Chapter V I I
of the present constitution) of Regional Assemblies
 Tribal Authorities
(a) T h e provisions regulating the vesting and control of Trust land.
(b) T h e provisions regulating control over transactions in agricul­
tural land.

Senate and Districts

(a) T h e provisions regulating the structure, composition, franchise
and procedure of the Senate (including its powers in relation to
the House of Representatives).
(b) T h e provisions determining the boundaries of the Districts and
regulating the procedure for altering those boundaries.

Amendment Procedure
T h e provisions regulating the procedure for amending the
constitution.
35. T h e constitution should provide that a Bill to amend any provision
of the constitution other than those referred to above should require the
consent of 75 per cent of all members of each House of the National
Assembly b u t if a Bill failed to obtain that majority at either the Second
or the Third Reading in either House, the proposals for the amendment
of the constitution should be submitted to a referendum of the persons
entitled to vote at an election of members of either House of the National
Assembly (namely, the persons o n the respective registers of voters at the
date of the referendum): if the proposals were endorsed by a majority
of two-thirds of the votes validly cast in the referendum, a Bill giving
effect to those proposals could be enacted in the normal way (i.e. intro­
duced in one House and passed by i t ; then introduced into the other
House and passed by i t ; in each case a simple majority of those present
and voting to suffice at all stages). N o amendment of such a Bill (other
than an amendment of a formal or drafting nature, to be certified as such
by the Speaker) should b e permitted during its passage through either
House.

Public Service
36. T h e constitution should provide t h a t : —
(a) There should be one independent Public Service Commission with
the same functions as the present Public Service Commissions. It
should be composed of seven members appointed in the same
manner as the independent members of the present Commissions.
(p) T h e Public Service should be based u p o n uniform grades, qualifica­
tions a n d conditions of pay a n d service, laid down by the Kenya
Parliament.
(c) T h e Public Service Commission should consult the employing
authority regarding any special attributes (e.g. a knowledge of a
particular language) which the authority would wish to see
possessed by a candidate in addition to the standard qualifications.
T h e employing authority should not be entitled to specify tribal
or geographical origin as such an attribute ; b u t the provisions of
 Section 178(10) and (11) of the constitution (v/hich give guidance
to the Commission regarding the Regional distribution of officials
at the Centre and in the Regions) should b e retained.
(d) A n officer allocated to the establishment of one employing authority
could b e transferred b y that employing authority from one post
to another within that establishment.
(e) If the Central Government should represent to the Public Service
Commission that there was an urgent need.in the national interest
for an officer to be posted to the establishment of a Region or to the
Central Government to discharge the functions of any office of
that establishment which was vacant or the holder of which was
temporarily unable to discharge those functions, the Public Service
Commission should with all practicable speed make an appoint­
ment for that purpose either substantive or on secondment. T h e
' Central Government could, if they deemed it necessary, specify
the particular officer to be so appointed. When under this pro­
cedure, an officer is appointed to an office to discharge the duties of
a particular post, he should not be removed from that post save with
the consent of the Public Service Commission after consultation with
the Central Government.
(/) The Central Government should have the right to arrange for the
secondment of any officer to any course of training (whether within
Kenya or abroad) which might be specified by the Central Govern­
ment. When the course of training ended, the Public Service
Commission should be required to appoint the officer to any office
of the grade then held by him that the Central Government might
specify. Any promotion arising out of the course of training would
remain the responsibility of the Public Service Commission.

"Qualifications for Voting and Candidature

37. In the provisions of the constitution which prescribe the qualifica­
tions for voting in National a n d Regional elections and the qualifications
for candidates a t those elections, the present references to " a British
s u b j e c t " or " a British protected person " should be replaced by a reference
to " a citizen of Kenya ".

Regional Budgets
38. T h e constitution should provide: —
*(a) that monies made available to Regions by the Central Govern­
ment (other t h a n monies specifically hypothecated by the con­
stitution itself), either as grant-in-aid of recurrent expenditure or for
capital development, should be paid into a special fund or funds
separate from the Regional F u n d and should be used only for the
purposes for which they were m a d e available by the Central Govern­
ment, that is to say, the purposes which were specified in the
Appropriation law under which they were paid over, which would
also be the authority for their withdrawal from the fund or funds in
question;
 (b) that there should be consultation between the Central Government
and each Region during the preparation of the estimates of the
revenues and expenditure of the Region that are required b y the
constitution to b e laid before the Regional Assembly for each
financial y e a r ; and
*(c) that where a Region seeks grant-in-aid or capital monies from
the Central Government it must not only consult the Central
Government, as indicated above, during the preparation of its
estimates but must frame those estimates and enact the relevant
laws in terms agreed with the Central Government.

"Regional Revenues from Taxation of Motor Spirits and Diesel Oils

39. T h e power vested in the Governor in his discretion (Sections 128(2)(6)
and 143(a) and (b) of the present constitution) to make regulations deter­
mining the exact shares of the Regions in revenue derived from taxes on
motor spirits and diesel oil should disappear and, instead, the constitution
should itself m a k e express provision on this subject.

"Schedules 4 and 5 of the present Constitution

40. The draftsman of the new constitution should endeavour to clarity
and simplify the provisions in Schedules 4 and 5 of the present constitution
(which relate to the division of legislative and executive powers between the
Centre and the Regions) and should in particular, consider whether it would
be possible in the time available to amalgamate these two schedules.

* Weights and Measures

41. This item should become wholly the responsibility of the Centre.

NOTE
It was agreed between the British Government and the Government of
Kenya that the Secretary of State's Legal Advisers would refer the draft
of the independence constitution to the Kenya law officers for comment:
Any points of disagreement would be decided by the Secretary of State.
 ANNEX E
LIST O F THOSE ATTENDING T H E CONFERENCE
The R t . Hon. Duncan Sandys, M.P., Secretary of State for the Colonies.
The Most Hon. T h e Marquess of Lansdowne, Minister of State for Colonial
Affairs.
Sir Hilton Poynton, K.C.M.G., Permanent Under-Secretary of State, Colonial
Office.
Sir J o h n Martin, K.C.M.G., C.B., C.V.O.

Mr W. B. L . Monson, C.M.G. ...

Mr. F . D . Webber
Webber,, C.M.G.
C.M.G.,, M.C. , T.D.

Mr. A. R. Rushford, C.M.G. ... )- Colonial Office.

Mr. P . R. N o a k e s , O.B.E.

Mr. P. J. Kitcatt

Mr. H . Steel ...

Mr. G. W. St. J. Chadwick, C.M.G

Mr. N . Aspin Commonwealth Re-

Sir Charles Dixon, K.C.M.G., K.C.V.O., O.B.E lations Office.

Mr. W, F. G. Le Bailly

Mr. J. M . Ross Home Office.

The Right Hon. Malcolm MacDonald, Governor of Kenya.

Mr. A. M. F . Webb, C.M.G., Q.C., Constitutional Adviser.

Mr. F. A . Loyd, C.M.G., O.B.E., Permanent Secretary.

Mr. J. Kenyatta, Prime Minister

Mr. A. Oginga Odinga, Minister for Home
Affairs
Mr. T. J. Mboya, Minister of Justice and Con­
stitutional Affairs
Mr. J. S. Gichuru, Minister for Finance and
Economic Planning ...
Mr. B. R. McKenzie, D.S.O., D.F.C., Minister
for Agriculture and Animal Husbandry ...
Dr. J. G. Kiano, Minister for Commerce and
Industry
Mr. S. O. Ayodo, Minister for Local Govern­
ment ...
Mr. E. N . Mwendwa, Minister for Labour and y Kenya Government.
Social Services
Mr. D. Mwanyumba, Minister for Works, Com­
munications and Power
Mr. L. G. Sagini, Minister for Natural Resources
Mr. Chanan Singh, Parliamentary Secretary to
the Prime Minister
Mr. P. Ngei
Dr. B. Malik (Adviser)
Mr. C. Njonjo
Mr. G. J. Ellerton,
C.M.G., M.B.E. ... y Officials
Mr. M . K. M w e n d w a . . .
Mr. M. L. D u n l a p ...
Mr. R. G. Ngala ...
Mr. M . Muliro
Mr. J. K. Ole Tipis
Mr. M. J. Seroney ...
Mr. R. S. M a t a n o ... ?- Opposition.
Mr. M. Shikuku ...
Mr. R. S. Alexander
Mr. F . M. Bennett, M.P. VAdvisers ...

Dr. E. Zellweger ... J

Mr. L. R. Maconochie Welwood

The Rt. H o n . The E a r l of Enniskillen ...

European Represen-
Mr. C. W. Salter, Q.C. ... ... ...
I tatives.
The Rt. Hon. Lord Delamere (Adviser)

Mr. J. T. A. Howard-Drake

Mr. J. K. Hickman

Mr. J. D. A. Evans

Mr. R. J. Dorrington

Mr. F . H. Brown ...

? Secretariat.
Mr. W. T. Hull ...

Mr. R. W. Wootton

Mr. G. O. Young ...

(31039) Wt. 684-169 K20 10/63 St.S.

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