Article 231(4): Notes and coins issued by the Central Bank of Kenya may bear images that depict or symbolise Kenya or an aspect of Kenya but shall not bear the portrait of any individual
On June 1, 2019 Kenya celebrated its 56th Madaraka Day. A day commemorated for the day Kenya attained internal self-governance from the British imperialists.
June 1 was however a very unique day for Kenyans not because a national day was for the first time being celebrated in Narok County, but because the Governor of the Central Bank, Dr Patrick Njoroge, was launching new notes for the 50, 100, 200, 500 and 1000 shilling denominations.
Before the onset of the modern day currency, local communities traded and exchanged goods and services using intermediaries, with barter trade as one of the primary forms of trade. Close communities exchanged pastoral and agricultural commodities with goods coming from as far as Tanzania and Zanzibar. It is the lack of a common currency that facilitated the growth of barter trade, with communities exchanging what they needed with what they already had in surplus.
The increase in trade came with the growth of currency forms such as cowrie shells, cloth, wire and beads in the hinterlands thus forming a strong and stable medium of exchange curing the problematic barter system of trade.
Early currencies were a pre-cursor to formal currencies and they were seen as easily portable, divisible, and universal. The advent of colonialists and the construction of the Kenya-Uganda Railway saw the advancement of the currency from previous proto currency to Indian Rupees and fractional coins to the present day Kenya shilling advanced after independence. The promulgation of the Kenyan Constitution in 2010 heralded a new constitutional, social, political and economic order. The 2010 Constitution has been viewed as a post-liberal one not only assigning and checking state power, but also instrumental in transformation and reconstruction of Kenya’s body polity. Among other issues, it mandates the key state actors on how to effect transformative project and introduces fundamental changes in economic and political spheres.
In Speaker Of The Senate & Another V Hon. Attorney-General & Another & 3 Others  eKLR, Advisory Opinion Reference 2 of 2013the Supreme Court christens Kenya’s 2010 Constitution a transformative charter which unlike the conventional “liberal” Constitutions of the earlier decades that essentially sought the control and legitimization of public power, seeks to institute social change and reform, through values such as social justice.
Thus in effecting the transformative agenda, Article 231 established the Central Bank of Kenya as an independent institution with powers to formulate monetary policy, promote price stability, issue currency and performing other functions conferred on it by an Act of Parliament. In formulating the monetary policy, the Central Bank of Kenya was tasked with overseeing the demonitisation of Kenyan currency without affecting its key functions; serving as a medium of exchange, store of value and unit of account.
Kenya’s chief banker began this process with the change of the currency coins in 2018 with the introduction of new 1, 5, 10 and 20 shilling coins bearing the giraffe, rhino, lion and elephant images respectively. This was done in a very systematic manner with due credence on the CBK’s obligation to issue currency bearing images that only depict or symbolize Kenya or an aspect of Kenya but not the portrait of any individual.
Fast forward to Madaraka Day 2019 and thus came the introduction of the new currency notes in 50, 100, 200, 500 and 1000 denominations. In unveiling the new notes, the CBK Governor stated that the new currencies have designs that meet CBK requirements, serve the public aspirations and capture the spirit of the constitution. The front of the bank notes bears the image of Kenyatta International Convention Centre, a dove as a symbol of peace with the back of the bank notes symbolizing green energy, agriculture, social services, tourism and governance. In particular the Sh50 note images symbolize green energy, Sh100 agriculture related images, Sh200 social services images, and Sh500 tourism related images while the Sh1000 displays governance images.
These designs have been made accessible to persons with disabilities, notably, the blind, who can easily identify the notes by feeling them with the 50, 100, 200, 500 and 1000 denominations having two, three, four and five bars respectively. Just like the previous notes, the new notes have a security thread appearing as a continuous line which changes colour from red to green on all currencies with the 3 largest denominations having additional rainbow colours on the thread.
It is this release of the new notes that has led activist Okiya Omtatah to file a case at the Milimani Law Courts accusing the Central Bank of Kenya (CBK) of violating the Constitution by having a statue of Kenya’s founding President Jomo Kenyatta at the back of all the new notes. Omtatah argues that the move by the CBK violates Article 231(4) of the Constitution (4) which states thus; Notes and coins issued by the Central Bank of Kenya may bear images that depict or symbolise Kenya or an aspect of Kenya but shall not bear the portrait of any individual.
He further accuses the CBK of not conducting public participation in the design stage to determine its imagery, and challenges the demonetization of the Sh1000 notes after October 1, insisting that the move is not supported by any provisions in law. Justice Weldon Korir has referred the matter to the Chief Justice for the formation of a three-judge.
At the heart of this controversy over the new notes is the problem of the portrait of the founding father, Mzee Jomo Kenyatta. Article 231(4) of the Constitution prohibits notes from bearing the images that depict the portrait of any individual. The illustration of the Kenyatta International Convention Centre strategically at an angle to capture Mzee’s statute is seen to be a cheeky attempt at capturing the portrait of the old man albeit subtly, a clear violation of Article 231.
In the design and architecture of the Constitution, the drafters had in mind the transformative effect of the new constitution in the creation of new currency as a unifying symbol. However the central bank of Kenya seems to be hell bent on backtracking on this through cheeky inclusion of the statute of Mzee Kenyatta, whose presence in power and rule over the years evokes different feelings across the country.
This must be seen as a clear calculation by the system hell-bent on immortalizing a man loathed and loved in equal measure in Kenya’s history. Coupled with the renewal of Governor Njoroge’s term to oversee and effect the new financial directive, it speaks volumes about the government’s true intention to effect currency change.
One is left wondering what happened to the previous notes bearing wildlife images that had been advertised for replacement of the current notes. With a matter so weighty as this, it is perplexing to note it has taken nine years since the promulgation of the new Constitution to issue new notes and still fail miserably in effecting the law guiding the same. One would think proper public participation in the process especially as regards the notes images would have saved the already wasteful government from printing contentious currency. The fact that we managed to seamlessly transition to the new currencies shows our lack of commitment in effecting absolute change and the enduring truth is, the more things change the more they stay the same.