Senator Mutula Kilonzo Jnr has authored an important Bill on the national flag — perhaps in a bid to remove some anachronistic political mischief that has always surrounded the flag.
A few years ago, governors attempted to fly the national flag in their cars and they were warned — by no less person than Attorney-General Githu Muigai — that they risked prosecution.
Kenya must be one of the few countries where it is a crime to fly the national flag.
In the US, they allow everyone to fly the flag as long as it is fastened.
The Americans treat their flag as the most powerful symbol of Americanism and desecration of the flag can lead to public outrage. The flag motif is also used on clothing ornaments such as badges and lapel pins.
But in Kenya, the law prohibits flying or displaying the national flag on any premises, not being government premises, on any occasion other than a public holiday “or such other occasion as may be notified by the President”.
Further, it says, any person who flies the National Flag “on any motor vehicle” shall be guilty of an offence.
The only people exempted from this rule are: The President, the Deputy President, the Chief Justice, the Speaker of the National Assembly and Senate, Cabinet Secretaries, Kenyan diplomats (only when abroad) and the Attorney-General.
SH5 MILLION FINE
The worst part is that, for flying the flag, one can be jailed for up to five years and fined an amount not exceeding Sh5 million or both.
Again, there are four names that are also protected alongside the national flag and cannot be used in any trade or business, calling or profession.
These are “Harambee”, “Jamhuri”, “Madaraka” and “Nyayo”.
While the first three were protected at Independence in 1963, the word Nyayo, adopted by President Moi in 1978 as his signature rallying call to assuage the feelings of Kenyatta-era political barons who he (Moi) thought would turn around against him, was protected in 1979.
This was after it emerged President Moi was being referred to by that nickname and also, some traders had started cashing on the popularity of the name.
President Moi had promised to follow the footsteps (in Swahili nyayo) of the late President Kenyatta — a pseudo promise that allowed him to entrench himself until 1983 when he started dismantling the Kenyatta state.
As the popularity of the slogan reached a crescendo, screen-printed t-shirts with two footprints images had gone on sale while bars, butcheries and shops had been renamed Nyayo. It also became the political buzzword meaning “toeing the line” – although Moi sold it as a “philosophy” (whatever he meant) of “peace, love and unity”.
Similarly, Attorney-General Charles Njonjo had also warned traders that they risked being prosecuted for abusing the name Nyayo.
He told industrialists and businessmen dealing in fabrics printed with the word Nyayo to exhaust their stocks and to stop making or selling such fabrics.
And with that, only government entities and infrastructure such as Nyayo Stadium, Nyayo Wards, Nyayo Tea Zone and Nyayo House could legally use the name. Still, the word Nyayo is protected — although it is equated with the excesses of the Kanu regime.
And that is the same story behind the Kenyan flag, too.
Back to the 1960s, the new Kenyan flag was a symbol of victory over the settlers’ bid to delay the granting of independence, and a sign of pride for the restless freedom fighters.
By crafting the rules, the government feared settlers might disrespect the new flag and hold it in disdain or, simply put, in contempt.
A lot had been done to seek a balance between the interests of the two leading parties, Kanu and Kadu but nothing had been done to accommodate the European settlers, the Indians, and the renegade secessionists.
In order to balance these interests, the national flag adopted the colours of both Jomo Kenyatta’s Kanu and Ronald Ngala’s Kenya African Democratic Union (Kadu).
It was a compromise that was done to save the country from the divisions that had wrecked newly-independent nations such as Patrice Lumumba’s Congo.
Initially, it had been suggested within Kanu circles that their party flag should be adopted as the national flag. It was a far-fetched and divisive idea.
Today, it is hard by looking at the archival documents, to know who exactly floated the idea of Kanu flag becoming the national flag. But by reading through the deliberations of the inter-ministerial committee, one can see the work of Kanu hardliners – who later coalesced together as Kiambu Mafia and led by James Gichuru, Mbiyu Koinange, and Dr Njoroge Mungai.
Mr Mboya, perhaps the most important person in the making of Kenyan flag, was not for the idea.
“The national flag must be a symbol of unity and freedom,” Mboya submits in one of the Cabinet papers.
But still Mboya wanted some aspects of the Kanu flag to have place in the Kenyan history and this was a good chance. The papers show that Mboya suggested the national flag should be crafted on the same likeness as the Kanu flag, adopting similar colours together with some others.
It was not an original idea. Actually, Mr Mboya had copied it from Tanzania and Uganda which had modified the winning party’s flag to become the national flag.
In his Cabinet memo to Kenyatta, Mr Mboya wrote: “It is not without significance that our neighbours, Tanganyika and Uganda, both saw it fit to use the ruling party flag simply as a basis for the national flag.”
The opposition Kenya African Democratic Union (Kadu) coalescing around Ronald Ngala, Masinde Muliro and Daniel arap Moi had always threatened to scuttle the celebrations demanding a delay to Kenya’s republican status.
Mr Mboya, who was Prime Minister Jomo Kenyatta’s minister for Justice and Constitutional minister in the run up to Independence, knew that a controversy over the flag would taint the independence celebrations with some bitterness.
He informed Kenyatta in another Cabinet note of the risks involved if they adopted the Kanu flag wholly.
Mr Kenyatta agreed with Mr Mboya’s position and this led to the appointment of a moderate politician, Dawson Mwanyumba, who was the Kanu chairman for Taita, and Kenyatta’s minister for Works, Communication and Power to lead a small committee that would come up with a national flag.
Actually, Mr Mwanyumba had an easier task than originally thought since the Kanu and Kadu flags were similar in design. Both had three horizontal bands and two similar colours, black and green. The difference was only in third colour, red for Kanu and white for Kadu.
Again, Mr Mboya had later suggested to the Cabinet that “it would be a wise and unifying act of grace to have all the colours (of both Kanu and Kadu) in the national flag. It would also save the country any unpleasant incidents, bitterness and resentment.”
The Mwanyumba committee decided to merge both the Kanu and Kadu flag colours and separate them with a white stripe between the main colours.
The white colour in the national flag was borrowed from Kadu and it initially stood for a multi-racial society. But the Cabinet changed its meaning to “unity and peace” and they dropped the proposed gold strips which had been suggested earlier.
As Mr Mwanyumba told the Cabinet, the inclusion of Kadu colours was a “magnanimous gesture towards our political opponents and would be an act tending to unity rather than dissension” and that the inclusion of the gold colour did not go far enough in pacifying the opposition — a “shortcoming which may well arouse bitter and resentful feelings.”
Black colour was adopted to denote “people of Kenya”, and Kanu’s red was to stand for “struggle for freedom”. The green was to denote “agriculture and natural resource”.
But there was deep resentment since the other smaller political parties had not been briefed. To protect the flag, Mboya moved the National Flag, Emblems and Names Bill but there was no clause on prohibition then.
Actually, when the matter was brought to the floor of the House, both Kanu and Kadu leaders were happy with it. After all, it had been negotiated outside the house and was a compromise. The only worry was what the other races — especially the minority Somalis who were threatening secession — would say about the flag.
“I hope the flag will not be misunderstood or mistreated, or in any way resented by any people in any corner of Kenya,” said opposition leader, Ronald Ngala in November 1963, setting the tone for a national debate.
On his part, Prime Minister Jomo Kenyatta said: “It is the duty of every citizen of Kenya to respect our national flag, and I might tell you that anyone who disrespects or abuses it will be dealt with accordingly, because it is not only the flag he will be insulting but the whole nation.”
But a few months into independence, it was realised white farmers were incensed by the new flag — even before they had seen it.
On the afternoon of November 29, 1963 — two weeks to Kenya gaining independence — the Minister of State for Pan African Affairs Mbiyu Koinange brought “Special Instructions” to the Committee of the Whole House seeking to have a new clause to deal with “prohibition of displaying of flag”.
But this was only meant to stop the secessionists in Northern Kenya from flying the Somalia flag in Kenya.
While that had been achieved with ease, it was brought to the attention of Prime Minister Kenyatta in July 1964 that the national flag was even being displayed in toilets.
He told the House: “The government recognises that a national flag must not only be a symbol of unity, but one that commands respect of all our people… of late we have seen party flags flown by every Tom Dick and Harry.
“Apart from this being illegal, it means flags have appeared in practically any place, even in lavatories. The national flag must not and will not be flown by any person other than Cabinet ministers and any specifically authorised persons…the reproduction of the flag will not be allowed…no person will be authorised to fly a flag with a coat-of-arms, except the head of government.”
It was after this that Mr Koinange moved the Bill to further protect the flag. He was supported by Kirinyaga East MP KN Gichoya who warned that unless strict laws were enacted to protect the flag “we might sometime find the national flag being used as a blanket or bed cover or as a table cloth. When this is done, it will mean that the nation is degraded.”
As Senator Mutula Kilonzo seeks to undo some of these fears — now overtaken by events — it will be interesting to see how to balance the passion for patriotism and the need to protect the dignity of the Kenyan flag.