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Tuesday, November 4, 1997 Published at 15:05 GMT

The legacy of colonial law

Cathy Jenkins, the BBC East Africa correspondent, based in Nairobi, relates how Kenya is still trying to shrug off its colonial past.

Every year in Kenya there's a national holiday called Kenyatta Day. October 20 marks the day in 1952 when Jomo Kenyatta, the first leader of independent Kenya, together with other nationalists were arrested by the British colonial rulers. Kenyans in general agree that the nation has rather neglected its independence fighters. But that doesn't stop anyone from enjoying the pomp and ceremony; the military parades and aerial displays that have become a staple of the occasions.

This year's festivities come at a crucial moment for Kenya. Earlier this year, as civil unrest broke onto the streets, President Daniel Arap Moi sensed that the wind had changed, and whether he liked it or not, he had to address the growing demand for constitutional reform. Thirty-four years after independence, the changes being demanded by reform lobbyists in many cases relate to legislation dating from colonial times. The reason that these laws have lasted so long is that many Kenyans have done well out of them - President Moi has been head of state for nineteen years, and to a large extent he and his party the Kenya African National Union, can attribute their long stay in power to them.

One of the laws up for change is the chiefs' Authority Act. Under colonial rule, the British devised a simple way for ensuring the loyalty of the head of a village: they made him responsible for preserving order in his community. Today, the act ensures a chief's unswerving loyalty to the ruling party. The local chief has enormous powers to dictate the lives of his people; all public activities - from marriages to the settling of land disputes - have to have his stamp of approval, and he even has powers of arrest and detention. All of which is open to massive abuse. A contributor to a law journal lamented the lot of communities harassed by chiefs who "terrorise villagers with a zeal not even seen during colonial days_They are the law, the prosecutors and the judges", he writes. It seems everyone is unhappy about a chief's powers, unless, that is, you happen to be a chief.

You don't hear so much nowadays about colonialism being at the root of all Kenya's present woes. But passing references to the "evils" of colonial rule still have a place. President Moi, during his Kenyatta Day address, voiced his displeasure at what he considers to have been too much interference recently by foreign powers. "To say 'come and do this come and do this' reminds us of our colonial days", he told the lines of diplomats seated in the stand behind him. Having been the African darling of the West, President Moi was put out, to say the least, when the West turned on him in July after elite units of riot police brutally crushed opposition demonstrations.

President Moi might also have been referring to a challenge by American diplomats to allow the registration of a certain political parties. The Americans said that if the president was really committed to constitutional reforms, he would give a licence to the Safina party, so that it could compete in forthcoming general elections. Safina is run by Richard Leakey, a white Kenyan who happens to be a world-renowned palaeontologist. Mr Leakey has been trying to register Safina since 1995, without success. In the latest rebuff, Mr Leakey was informed that his party could not be registered because it would present a threat to the security of the nation. Mr Leakey was outraged to find out that his ban had been justified by a piece of colonial legislation drafted in 1948; it was, Mr Leakey said, an act used to clamp down on emergent freedom-seeking groups in Kenya.

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