Ghai Constitutionalism

Constitutions and constitutionalism

Yash Ghai
The Oxford Handbook of Kenyan Politics
Edited by Nic Cheeseman, Karuti Kanyinga, and Gabrielle Lynch
Print Publication Date: Feb 2020 Subject: Political Science, Regional Studies
Online Publication Date: Apr 2020 DOI: 10.1093/oxfordhb/9780198815693.013.13
Abstract and Keywords
The notion of a constitutional order is broader than the text of a constitution and includes
the norms of international and regional laws. In turn, constitutionalism refers to an ad
herence to that order and to a system in which power belongs to state offices, rather than
to individuals. As such, constitutionalism is a source of power, but it also sets limits on
power. This chapter analyses the struggle for constitutional reform and constitutionalism
from the 1990s to the introduction of the 2010 Constitution. The chapter then turns to the
Constitution’s promise of constitutionalism, to the challenges faced, and to the progress
that has nevertheless been made, in large part, due to a clear timetable and more inde
pendent judiciary. The chapter concludes that without full implementation of the letter
and spirit of the 2010 Constitution, the transformation of Kenya into a constitutional and
democratic state is far from assured.
Keywords: constitution, constitutionalism, power, reform, law, judiciary
15.1 Introduction
HISTORICALLY, the contemporary notion of constitutionalism is associated with the rise
of capitalism in Europe in the seventeenth century. Nascent capitalism required a degree
of autonomy for those engaged in the market economy, but at the same time it necessitat
ed the enforcement of contracts and transactions that were promised in the private sec
tor. This required the assistance of the state and in particular the judiciary to sustain the
institution of private property and generate a degree of predictability in terms of the en
forcement of an agreed set of rules and regulations. The law and its enforcement by the
judiciary thus became a key basis of market economies. Such an arrangement came to be
referred to as “constitutionalism” (McIlwain 1940).
Since then the scope and objectives of constitutionalism have expanded greatly. From a
highly capitalist and autocratic regime, constitutionalism now covers the supremacy of
the constitution: where state authority is subject to limits that arise from the rights of the
people and the principles of good government. In a democracy, this typically implies a
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separation of powers of the state—often both horizontally and vertically—and checks and
balances. A key element is the rule of law, which requires that state authorities and all in
dividuals are bound by the law; policies must be consistent with the law; and administra
tive discretion must be exercised in accordance with the law. The law itself must be a re
flection of popular will, arrived at through a prescribed procedure. The notion of a consti
tutional order is broader than merely the text of the constitution. Today it includes the
norms of international and regional laws.
On this interpretation of constitutionalism, power belongs to state offices, not to individu

als, however exalted. The purpose for which power must be used and the mode of its ex
ercise are set out in the law. The holders of even the highest state offices are subject to
the law. This aspect of constitutionalism has proved extremely hard to realize in (p. 208)
Africa—where public office has its own aura, and expectations of the people merely en
courage the whimsical, capricious, or biased exercise of their powers. The mores of colo
nialism—in which the rule of law was used to enforce an unjust and undemocratic politi
cal system—have retained their lure for politicians and bureaucrats. There has been some
debate in Africa as to the appropriateness of the concept of constitutionalism as stated
above (as discussed in Ghai 2017).
In the Kenyan context, the struggle for constitutional reform—from the one-party regime
established by Moi in the early 1990s to the 2010 Constitution—is a complicated story of
the tension between democracy and authoritarianism, with some key actors shifting from
supporting one form of governance to another on the basis of their anticipated personal
or class advantages. These struggles give us a good insight into the importance of the
state, at least for the political and business classes, as it interacts with but ultimately
overwhelms the relevance of ethnicity. Understanding what happened, and why, also re
quires us to recognize that, over this long period of negotiations and halting progress, the
dominant players changed, with civil society actors overtaken by religious groups, who in
turn had to concede their leading role to politicians. The engagement of foreign powers
also changed considerably, waxing and waning over the decades.
Perhaps the ordinary people were the only group to remain consistent in their hopes and
desires as evidenced in their submissions to the Constitution of Kenya Review Commis
sion (and as shown in their vote in the referendum in August 2010, despite the campaign
by most Christian churches to vote against it). Although the public was effectively
squeezed out of the process towards the end by the decision to use a Committee of Ex
perts to revise the 2010 constitutional draft, they retained the casting vote, approving it
in a referendum, and in doing so conferring the legitimacy that the new political system
desperately needed.
15.2 A brief history of Kenya’s constitutions

The colonial constitutions, of course, ran completely counter to constitutionalism as set
out above; their task was to bestow on the governor ample powers to suppress local com
munities and if necessary take over their property, within the broad framework decreed
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by the imperial government in London—which knew no bounds to what it could do in the

colonies (Ghai and McAuslan 1970). An important role of the colonial constitution was the
creation of the state (particularly the repressive part of it: the administration, police,
army, prisons, and such).
Kenya shared with colonies of white settlement a particularly repressive regime, with dif
ferent laws in many respects, applying unequally to its racial communities. Almost
(p. 209) every aspect of constitutionalism was violated. Different communities had differ
ent rights, Europeans being the most privileged, and Africans the least. Britain was care
ful to separate not only Africans from other Africans, but also one “tribe” from another,
playing divide-and-rule politics. Inevitably some tribes had better access than others to
education, employment, public services, and so on, creating great disparities. As Kenya
moved towards independence (the result of global trends), racial distinctions began to be
eliminated, but by then economic and social differences made integration into a national
citizenry problematic—a problem not yet resolved.
The 1963 independence Constitution—which reflected these disparities—was the basis on

which Britain conferred independence on all the people/communities who had become
part of Kenya, a British creation, during its rule. The Constitution was the result of in
tense negotiations between different leaders and communities in Kenya, and between
Kenyan actors and the British. The negotiations started with many differing demands, as
one would expect, including secession for some and a merger with neighboring states for
others. After long and intense negotiations a settlement was reached and while some
groups were not happy with the outcome, it did recognize the autonomy of most commu
nities through a system of regional governments that has come to be known as majimbo
ism (D’Arcy, Chapter 18, this volume). The second important provision was a parliamen
tary system of government, with the leader of the largest party as prime minister, and a
head of state largely lacking in formal power (for a detailed account of the 1963 Constitu
tion, see Ghai and McAuslan 1970: 171–219).
Another important feature of the constitutional framework was a strong emphasis on

democracy and the protection of human rights. An independent judicial system was estab
lished, complete with a scrupulous separation of powers. The national legislature was bi-
cameral, designed to safeguard regionalism and significant autonomy was given to civil
service heads of ministries. The police, of both the national and regional governments,
had considerable autonomy. Provisions concerning the repeal or amendment of regional
ism required 90 percent of votes in the Senate (in addition to 75 percent in the other
house).
However, what looked like an impregnable constitution lasted barely two years, to be re
placed, under the direction of the country’s first president, Jomo Kenyatta, by a constitu
tion that seemed to be inspired by the colonial authoritarian style. No subsequent consti
tution—with the exception of the 2010 Constitution—tried or was able to remove the op
pressive elements of the colonial oppression, such is the power of the state. Ever since,
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the authoritarian bent of the state has won out over the democratic aspirations of the
people.
Upon Kenyatta’s death, state power passed on to his loyal vice-president, Daniel arap
Moi, a cleverer schemer than many at the time imagined. Under Moi, the state became
even more authoritarian, leading to the imposition of de jure one-party rule in 1982 and a
government that became increasingly brutal and corrupt.
(p. 210) 15.3 Search for a new Constitution

The first group to protest at Moi’s politics and plunder was civil society, composed princi
pally of lawyers and academics, led by William Mutunga, then a law academic and legal
practitioner who has provided an excellent account of this period and civil society resis
tance to Moi’s policies (Mutunga 1999). Soon a large number of civilians and a few politi
cians collaborated on a joint effort to change the Constitution—starting with a model
draft. Politicians, some of them once close to Moi, also began to demand political
changes. These groups were able to work together for a while, especially when Western
diplomats began to put pressure on Moi in the late 1980s to move towards a more democ
ratic system of government.
Taken together, international and domestic pressure compelled Moi to make minimum
concessions, removing Section 2A of the Constitution that had prohibited opposition polit
ical parties, and introducing presidential term limits. Despite this, Moi was able to retain
power throughout the 1990s despite the re-introduction of multi-partyism, by repressing
his opponents and because the opposition was so divided, enabling the president to win
elections without an absolute majority of the vote. In turn, the country’s clear democratic
deficit led to greater pressure for further constitutional change.
A series of meetings were held at the Bomas of Kenya cultural centre and the Safari Park
Hotel in Nairobi in the second half of 1998 to work out the objectives of constitutional re
form—which even Moi had to accept, as he attended the last of the meetings, realizing
that he had lost control over the process. The agreement on the essential features of the
new Constitution became the basis for the committee that would be entrusted to draft the
document. Frustrated by the slow pace of these discussions, the Ufungamano Initiative (a
group formed by religious leaders, trades unionists, and others in the later 1990s) estab
lished a committee to draft a constitution, which in turn prompted Moi to set up a rival
parliamentary commission. However, in the end the chair—and author of this paper—Yash
Ghai, who had been chosen to head the official commission, persuaded both groups to
join forces, and thus the Constitution of Kenya Review Commission (CKRC) started its
work. It was to be guided by the principles of the Safari Park conferences, including
democracy, separation of powers, human rights (both political and socio-economic), and
respect for diversity and communal rights, while strengthening national integration and
unity. It had also to consult the people widely on their preferences for the Constitution.
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The law provided that the draft of the CKRC would be debated and adopted by a con
stituent assembly consisting of all parliamentarians, district representatives, and civil so
ciety including representatives of religious groups, professionals and so on, after which
the revised document would go to Parliament for debate and adoption. Ghai was more or
less coerced into chairing the constituent assembly, but the process was interrupted
when Moi dissolved parliament in October 2002, necessitating an election by the end of
the year. Having served two terms in office and exhausted the two-term presidential limit,
Moi stood down, and KANU subsequently lost power to the National Rainbow Coalition
(NARC), led by Mwai Kibaki (Muhula Chapter 5, this volume).
The constituent assembly convened in April 2003, and by April 2004 the CRKC
(p. 211)
draft had been debated and sent to Parliament. However, in office, Kibaki—at one time a
supporter of the parliamentary government—became an ardent supporter of presidential
government. Having failed to kill the process by a walk-out, it seems that the country’s
new leader was involved in, if not fully behind, a court case that declared the Bomas draft
—named after the place where the assembly met—null and void (Njoya & 5 others v. At
torney General 2004). Parliament subsequently took over the draft, and a modified ver
sion, which essentially allowed the country’s authoritarian and centralized political sys
tem to survive, was defeated in a referendum—the first in the country’s history—after an
effective campaign by the opposition (Andreassen and Tostensen 2006). As a result, the
country continued to be governed by the old Constitution.
The impetus for more far-reaching change only came in the aftermath of the 2007 elec
tions, when a flawed process led to ethnic clashes that were resolved through the forma
tion of a power-sharing government that decided, among other things, to engage in a
process of constitutional reform to re-legitimate the political system. With the help of Kofi
Annan and his colleagues, who negotiated with Kenyan political leaders, it was agreed
that another committee (the Committee of Experts, or CoE, with three members from out
side the country) would review previous constitutional drafts and, in consultation with
Parliament, prepare a draft to go to the legislature and a referendum. They retained the
fundamentals of the Bomas draft, but nonetheless made profound changes, in large part
because the Committee felt that otherwise the whole document might be rejected.
Most notably, the idea of a parliamentary system was dropped, at the instance of parlia
mentarians from both the main groups, and a presidential model—largely based on the
US political system—was retained. However, the CoE’s draft did include the devolution of
some power and resources to 47 new counties, based on colonial districts (D’Arcy, Chap
ter 18 this volume). Many commentators were surprised when it was accepted by MPs
without significant amendment. With most of the major political parties and leaders on
board, it was a foregone conclusion that on August 4, 2010, the people would vote over
whelmingly in favor of its adoption, despite the opposition of churches and the prominent
Kalenjin leader William Ruto. In the end, the draft passed with 68.5 percent of the popu
lar vote.
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15.4 The orientation of the 2010 Constitution

The word “constitutionalism” appears only once in the 2010 Constitution, when it refers
to the responsibilities of the independent commissions and offices (Art. 249(1)(c))—which
is one more than in most constitutions! Although this is not stated expressly, other state
institutions—and indeed citizens—are also bound by the values and objectives (p. 212) of
the Constitution, including the rights of the people. By adopting the National Anthem, the
Constitution incorporates its values as national values—prominently, “unity, peace and lib
erty.” The Preamble reinforces this by emphasizing peace and national unity, while declar
ing Kenyans proud of “our ethnic, cultural and religious diversity.” Because social values
are not as common or uncontested as they were in the West, Kenyan constitutionalism
covers also the conduct and responsibilities of citizens.
Another important source of constitutionalism is Article 10, also on values, which covers
both state and society, though predominantly the former. Most of the values included here
are closely connected with constitutionalism, including democracy, the rule of law, human
dignity and rights, protection of the marginalized, and as far as the state is concerned,
“good governance, integrity, transparency and accountability.” Indeed, the Constitution
places a special importance on minorities and marginalized communities, but also on the
people as a whole through various forms of participation. The duties of the presidency
and the legislatures to the people are explicitly spelled out. The president, for example,
has to “promote respect for the diversity of the people and communities of Kenya” and to
ensure them the protection of “human rights and fundamental freedoms and the rule of
law” (Art. 131). A major theme is the recognition of religious, cultural, and ethnic diversi
ty, as well as the promotion of a sense of common citizenship and identity.
The theme of the rule of law—which is central to constitutionalism—runs throughout the

Constitution. Article 1 says that all state powers “shall be exercised in accordance with
this Constitution,” and Article 2 says that the Constitution “is the supreme law of the Re
public and binds all persons and all State organs.” General principles of international law,
and ratified treaties, are part of Kenyan laws. All laws (and presumably policies) that are
inconsistent with the Constitution are invalid. It is not only the state but “every person”
who must uphold and defend the Constitution (Art. 3). Article 21(1) makes it a fundamen
tal duty of the state and every state organ to observe, respect, protect, promote, and ful
fill the rights and fundamental freedoms in the Bill of Rights. Ample remedies are provid
ed for breach of the Constitution and other laws (Arts. 22, 258, and 259). A special re
sponsibility is placed on the judiciary for the protection of the law (Art. 159). In order that
the judiciary is able to exercise these functions without pressure from other state organs
(or indeed private sources), the rules governing the appointment and dismissal of judges
and the exercise of their functions are vested in an independent judge- and lawyer-domi
nated commission, and in the freedom of the judges in the exercise of their functions (see
especially Art. 160). In addition, a number of independent institutions (including the Om
budsman, which is established by law) are established to ensure conformity with the law
by state organs (Art. 249).
Page 6 of 15

The notion of constitutionalism or a constitutional order is, however, broader than merely
the text of the constitution. The 2010 Constitution is unusual in spelling out in consider
able detail the basis of constitutionalism: the values constituting constitutionalism and
the manner in which it is to be protected and strengthened. This detail and the concern
with enforceability are reactions to past governments, and even courts, which (p. 213)
paid scant regard to human rights and good governance even when the Constitution fea
tured provisions designed to secure them, as was the case with the 1963 Constitution.
15.4.1 The challenge of implementation
The drafters of the Constitution were well aware of the resistance that the Constitution
would encounter from vested interests in state and society. They were also aware of the
complexity of the political and administrative system they were recommending, the vast
amount of new laws that needed to be made—and some repealed—and the number of new
institutions that had to be established, with some old ones dismantled. This was only part
of the task; other changes necessitated by the new Constitution included the redeploy
ment of civil servants, reallocation of financial and other resources, a modified electoral
system, and a host of independent commissions to be created or modified. For this pur
pose, it included a scheme and timetable for the new legislation.
A constitution’s success depends both on factors internal to the constitution (its struc
tures, incentives, enforceability, clarity, etc.) and on external factors (social/economic
classes, legitimacy of the constitution, support and opposition to the constitution).
Drafters can do something about the former, but little about the latter. However, the long
period of the constitution-making process, during which considerable civic education as
well as consultations with Kenyans took place, enabled the people to understand some of
the objectives of the Constitution.
The difficulties of the implementation of the Constitution are both political and technical.
These include the following. First, resistance by the political, bureaucratic, and business
elites to the objectives of the Constitution, which emphasize integrity, transparency, par
ticipation, and independence of the judiciary. Second, drafting and passing the consider
able amount of legislation necessary to implement the principles of the Constitution. In
Kenya this includes legislation on integrity, land, the recall of legislators, an electoral sys
tem to handle the simultaneous election of six categories of representatives, representa
tion of marginalized groups, judicial independence, parliamentary control over the securi
ty forces and oversight by an independent authority, financial management systems, and
(perhaps the most difficult of all) the devolution of substantial powers to 47 new counties.
Third, establishing the required institutions, including the senate, independent commis
sions and office-holders, and revenue allocation mechanism and authority. Fourth, issues
of sequencing and coordination between the different steps required, for example in mak
ing major changes to the judiciary and police. Fifth, co-operation between and co-ordina
tion of the different bodies charged with implementation. Sixth, maintaining the
Constitution’s stress on public participation in practice. Seven, preventing government
departments and others from reasserting existing political and bureaucratic patterns.
Page 7 of 15

And last, but not least, building a clear understanding of the provisions of the Constitu
tion—which has been lacking among many Kenyans and NGOs—and of the necessity of
legislation to turn the Constitution into a lived reality, in order to foster pressure for new
legislative activities and practices.
(p. 214) 15.4.2 The scheme of implementation
The CKRC carried out a careful analysis of the new laws, and old laws to be reformed,
and made it obligatory for the government and the legislature to ensure the passage of
these laws within prescribed periods as set out in the Fifth Schedule—which decreed that
the entire process be completed within five years. Failure to do so would have generated
a severe penalty—no less than the dissolution of the legislature by the courts. This was an
ingenious scheme introduced by the CoE, which succeeding in putting the fear of the
courts into the legislators, although it could not guarantee quality legislation (Article
261). The Attorney General was given overall responsibility for this drafting process in
consultation with the Commission for the Implementation of the Constitution (CIC) and
with the Law Reform Commission.
The Constitution established the CIC as a temporary, independent commission to oversee

constitutional implementation, though its functions were less important and critical than
proposed by the CKRC. The functions were to monitor, facilitate, and oversee the develop
ment of legislation and administrative procedures required to implement the Constitu
tion; co-ordinate with government bodies responsible for preparing the legislation; work
with each constitutional commission to ensure that the letter and spirit of the Constitu
tion was respected; and, with regard to constitutional commissions (which include those
on human rights, elections, official salaries and remuneration, and allocation of revenue
between the national and counties and as among counties), to “ensure that the letter and
spirit of this Constitution is respected” (clause 5 of the Sixth Schedule).
But it is to the judiciary that the drafters looked for the safeguarding of the Constitution
in the last resort, and on whom it placed the highest responsibility. The Constitution
strengthens the independence of the judiciary through a more representative Judicial Ser
vice Commission (Arts. 160, 166–168, 171–172) and through greater control over finan
cial resources (Art. 173). However, the latter provision was not sufficient to ring-fence the
amount of resources flowing to the courts, as subsequent disagreements between the ju
diciary and a hostile Parliament have demonstrated. Ample opportunities are provided for
access to courts. All human rights (including socio-economic) are within the jurisdiction
of courts. Every person has the right to institute court proceedings claiming that a right
or fundamental freedom in the Bill of Rights has been denied, violated, or infringed, or is
threatened, on behalf of others (Art. 22(1)), or “acting in the public interest” (Art. 22(2)
(c)). Court Rules must ensure that formalities relating to the proceedings are kept to a
minimum, including, if necessary, beginning proceedings by “informal
documentation” (Art. 22(3)(b)); no fee is charged for commencing human rights proceed
ings (Art. 22(3)(c)); and with permission of the court an organization or person with par
Page 8 of 15

ticular expertise may appear as a friend of the court (Art. 22(3)(e)). Similar principles ap
ply for non-human rights cases (Article 258).
Along with other state organs, the judiciary has a fundamental duty to “observe, respect,
promote and fulfil the rights and fundamental freedoms in the Bill of Rights” (Art. 21(a)).
The judiciary, like other state organs, also have the duty to “address the (p. 215) needs of
the vulnerable groups within society, including women, children, youth, members of mi
nority or marginalised communities, and members of particular ethnic, religious or cul
tural communities” (Art. 21(3)). Moreover, courts are put under an obligation to develop
the law where law does not reflect the protection of a right (Art. 20(3)), a provision de
rived from the South African Constitution.
The Constitution sets guidelines for courts in the exercise of their authority. These in
clude that “justice shall be done to all, irrespective of status” (Art. 159(2)). The adminis
tration of justice must be directed to the promotion of the purposes and principles of the
Constitution. There is protection of the right to fair administrative action (Art. 47), which
gives the courts a specific role in respect of administrative law and practice. The Consti
tution also recognizes the rights of due process, including the right to free legal represen
tation if substantial injustice would result otherwise (Art. 50(g) and (h)). The rules of in
terpretation (which bind all state and private parties, not merely the courts) require that
the Constitution should be interpreted to promote its purposes, values, and principles, ad
vance the rule of law, human rights, and fundamental freedoms, permit the development
of the law, and contribute to good government.
15.4.3 Implementation in practice
A radical constitution has reasonable prospects of implementation only if its makers are
also radical and are in charge of the state (as in the immediate anti-apartheid era in
South Africa). That was not the case in Kenya, where very many of the parliamentarians
and ministers were of the old guard, without a vision of the country, who were opposed to
the ethos of the Constitution and determined to promote their own interests. Kibaki and
his close associates moved at an earlier stage to retain several features of the Moi Consti
tution, particularly the executive president. Few politicians had any understanding of hu
man rights and tended not to question them at Bomas and later—but by the same token
did little for their implementation. Parliamentarians introduced a large number of
changes to the draft Constitution (both Bomas and the Committee of Experts drafts), but
were so divided that they could not muster the required two-thirds vote, or even a quo
rum to make changes to the final version in Parliament in 2010. Raila Odinga and his
team were enthusiastic supporters of a parliamentary system and of significant devolu
tion—and were able to secure them through Bomas. But when it came to their engage
ment with the CoE draft, through the Parliamentary Select Committee in 2010, all of
them insisted on an executive president, and the supporters of devolution either did not
care or did not really understand what was on offer. The behavior of parliamentarians
since the 2010 Constitution shows less than full commitment to its provisions.
Page 9 of 15

Because the Constitution was specific on its own implementation—setting up a timetable

within which particular laws must be enacted and establishing an independent commis
sion to assist and oversee its implementation—considerable progress was made towards
establishing the institutions required by the Constitution. The former Chief Justice and
Attorney General (not known for their reformist tendencies) were removed, (p. 216) as re
quired by the Constitution (Sixth Schedule sections 24 and 31(7) respectively). The vet
ting of the judiciary for integrity and competence (required by Sixth Schedule section 23)
started on time and led to the dismissal of several high-profile judges (Judges and Magis
trates Vetting Board 2016). Senior police officers were also vetted, even though this was
not required by the Constitution. Most importantly, the establishment of devolution has
made progress: with the elections of governors and assemblies, appointment of officers
and staff, allocation of revenue, transfers of most prescribed functions, and bold initia
tives by some governors, though verdicts remain mixed (see Apollo 2018 for a positive
reading).
However, the fact that the formalities of the Constitution are respected does not mean
that the spirit behind them is being honored. There is considerable evidence that the In
dependent Electoral and Boundaries Commission (IEBC) failed in its constitutional and le
gal responsibilities (Chapter 7, particularly Articles 81, 84, 86) as a result of corruption
and inefficiency, of which the best exposition can be found in the Supreme Court’s judg
ment in the presidential election petition of September 2017 (see Odinga & another v In
dependent Electoral and Boundaries Commission 2017; also Pommerolle, Chapter 8 this
volume). Political parties paid scant regard to constitutional rules governing their forma
tion and functioning. These included the prohibition of advocacy of an ethnic basis for
parties, hatred, the use of violence, or the giving of bribes (Art. 91). The parties tolerated
and even encouraged shifts in party allegiances, making a mockery of the concept of po
litical parties and that of democracy.
Similar problems have been recorded in other areas. The principle of parliamentary con
sent for the appointment of state officers has been largely negated. It has become a com
modity in the hands of parliamentarians. Some key positions are held by people against
whom allegations of corruption or other breaches of integrity are pending.
Another challenge when it comes to implementation is the tension between different insti
tutions. The Constitution carefully defines each institution’s tasks and the principle of co-
operation, which is essential to the setting up and functioning of the new constitutional
institutions. Yet there have been many conflicts between institutions at the same and dif
ferent levels, seemingly petty, which have retarded the proper implementation of the Con
stitution, particularly regarding devolution. Devolution itself has achieved dubious suc
cess. While some important developments have been achieved, there is also a great deal
of corruption and favoritism at the center. There are uneasy relationships between the
National Assembly and the Senate, between the executive and the judiciary, and between
the executive and the universities, to name just a few.
Page 10 of 15

As to the nature of the executive, it is not as inclusive as it is required to be in terms of

the composition of the cabinet (see Voice of America 2018). The same is true of the public
service (see NCIC 2016a, 2016b), while the security services are even less inclusive. Even
more concerning are changes that have deprived security chiefs of their independence.
More specifically, the law was amended to allow the President to appoint the Inspector
General of Police, with the approval of Parliament, rather than the open and competitive
process that had been previously envisaged (National Police Service Act s. 12, as amend
ed in 2014). Partly as a result, police reform has not progressed (p. 217) as had been
hoped, and the security forces continue to operate on the basis of the colonial mandate of
shoot to kill (Letting and Bakari 2018). Consequently, the police represent not only one of
the most violent groups in the country but also one of the most corrupt (EACC 2017). The
government has done little to stop this state of affairs, perhaps due to its dependence on
the police to maintain its grip on society.
This reflects a broader problem, which is the limited commitment of successive Kenyan
governments to protecting human rights. Consequently, the country’s colonial and post-
colonial history is a litany of violations of human rights, inequalities, brutalities wreaked
on the poor and the helpless, deprivation of property (mostly land), and long detentions in
prisons or torture chambers. There is also impunity for those responsible for these atroci
ties or other breaches of law. Little has changed, in either the Kibaki or the Kenyatta
regimes, despite a detailed and carefully drafted Bill of Right, though long detention with
out trial and torture chambers are largely gone. People still have difficulty in organizing
meetings, assemblies, and protests—the police brutality has all the hallmarks of a colo
nial regime, and is particularly noticeable during an election year (Freedom House 2018;
see also HRW 2016; Pommerolle, Chapter 8 this volume). The recognition of social and
economic rights in the Constitution has produced much governmental rhetoric, but con
crete results have been disappointing.
Of all the institutions, the judiciary has come closest to the spirit of the Constitution. The
poor reputation of the judiciary before 2010 has not been entirely overcome, and there
are serious doubts about the integrity of the vetting process, but some corrupt judges
were removed, and some excellent new ones appointed. The judiciary was easily the most
favored and trusted institution at the start of the Constitution, especially with the ap
pointment of Dr. Willy Mutunga as the Chief Justice (2011–2016), and the reform of the
judiciary (for the judiciary’s own perspective, see Judiciary of Kenya 2017, 2018). The ju
diciary has also done much to improve its conduct and image. This includes more train
ing, exposure to progressive foreign experiences, internal discussions of various aspects
of its work in the light of the Constitution, some participation of the people in supervision
of the system through court users’ committees, and the generation of promising jurispru
dence. Moreover, by 2018, several critical issues about politics—including the powers of
and relationship between key governmental institutions and issues relating to gender,
property, land, slums, and evictions—were already being decided by the courts. Most
judges have demonstrated genuine impartiality and written thoughtful, well-researched
judgments that have earned respect for the judiciary—which in turn has led to greater re
sort to the courts than ever before (for the reports of cases see KenyaLaw.org). However,
Page 11 of 15

suspicions remain about the integrity of a few senior judges, who in some cases are still
said to be influenced by political pressures.
The government may still defy the judiciary, both in terms of making hostile comments
and in terms of refusing to comply with its rulings. Indeed, court rulings on human rights
are routinely ignored, as for example in the area of housing, where most destructive evic
tions continue despite powerful judicial decisions against such evictions. The
government’s hostility to human rights and democracy is manifested in its efforts to curb
civil society and the media following the 2013 election.
(p. 218) 15.5 Conclusion

While at a formal level many constitutional provisions have been implemented, there has
often been a lack of respect for the spirit and objectives of the Constitution in practice.
This is not surprising. The distinguished Indian sociologist André Béteille (1992: 1) sug
gests that while a constitution may indicate the direction in which we must move, the so
cietal (and, we may add, economic) structure will decide how far we are able to move and
at what pace.
The social reform agenda characteristic of contemporary constitutions challenges exist

ing societal values and prejudices that for the most part favor elites. As a result, constitu
tional reformers cannot assume that society is uniformly supportive of their proposals.
Different sectors have different, often clashing interests. The constitution’s design of a
political order competes with other political models and realities. The common constitu
tional value of impersonal power, for example, contradicts older ideas of how a “chief”
can and should act, ideas that may underlie the “strong man” syndrome often found in
presidential government and equally supportive of politicized ethnicity.
While the African state is strong in its subjugation of society, it is weak in its capacity to
direct social change. Most politicians have little desire for social progress, concentrating
on their predatory practices, protected by political fragmentation and the ethnicization of
society. In this vortex of constitutional values and mandates in competition with the ambi
tions and predations of politicians and bureaucrats, there seems no room for moral val
ues, equality under law, or settled legal principle and practice. Both this type of
“strength” and weakness/incapacity are harmful for growth of constitutionalism. The
“strength” can lead to the disregard of values and “weakness” to a failure to implement
them.
I have argued elsewhere that the fortunes of a constitution are influenced by three fac
tors: the nature of the state, economy, and society (Ghai 2010). The 2010 Constitution has
changed the form but not the reality of the state, which remains rooted in the colonial
legacy. It is still dominated by a small class, heavily dependent on armed force, with little,
if any, commitment to the Constitution. Accumulation in favor of the ruling class is the
principal task of the state. The economy continues to be an administered economy, de
spite considerable economic development. In an administered economy, the key levers are
Page 12 of 15

in the hands of the state executive. This increases the competition for the control of the
state. The state becomes a major source for the accumulation of private wealth—some
thing which can be secured only by corruption and the disregard of the rule of law/consti
tutionalism.
As a result, the conflicts between different legislative bodies and executive authorities,
particularly as manifested in the management of devolution, are not about principles but
about power. The competition for the capture of the state is fought out through the mobi
lization of ethnic support, which downgrades policies and robs politics of its significance.
The pervasive use of corruption to buy votes for and in Parliament, to secure contracts, to
secure appointments, to undermine justice, and so on challenges constitutional values
and principles. The economy feeds into this system, conforming to (p. 219) its imperatives,
rather than challenging it, as market capitalism did in Europe and the US. In turn, this re
inforces the willingness of those in power to breach the Constitution.
Despite the post-colonial rise of an incipient bourgeoisie and other social forces, one of
the main implications of this process for society has been the political alienation of most
Kenyans. Although peasants and workers are at the receiving end of the predatory and vi
olent practices of the state and constitute a majority of the population, they cannot trans
late their grievance into political clout or pressure, since they have been divided by eth
nicity. The 2010 Constitution contains clauses that have the potential to change this state
of affairs, but this will only happen if sufficient pressure can be applied to ensure that
they are implemented. As that pressure depends, in turn, on a degree of popular mobiliza
tion, the transformation of Kenya into a constitutional and democratic state is far from as
sured.
Acknowledgments
The author is grateful to Jill Cottrell Ghai for her comments on an earlier draft of this pa
per.
References
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Béteille, A. (1992). The Backward Classes in Contemporary India. Delhi: Oxford Universi
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Survey, 2016.” EACC Research Report No. 3, Jan. 2017.
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Freedom House (2018). “Kenya Profile.” https://freedomhouse.org/report/freedom-

world/2018/kenya
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Law and (In)Equalities: Contemporary Perspectives, ed. S. Dewa, 313–332. Lucknow:
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tive Law 2016, ed. M. P. Singh, 143–88. Delhi: Oxford University Press.
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Study of the Legal Framework of Government from Colonial Times to the Present. Oxford:
Oxford University Press.
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2016. https://www.hrw.org/news/2016/06/20/kenya-police-killings-during-protests
Judges and Magistrates Vetting Board (2016). “Vetting of Judges and Magistrates in
Kenya: Final Report.”
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Report 2016–2017.” https://www.judiciary.go.ke/download/state-of-the-judiciary-
and-the-administration-of-justice-report-2016-2017/
Judiciary of Kenya (2018). “Sustaining the Judiciary Transformation 2017–2021.”

(p. 220)
https://www.judiciary.go.ke/resources/publications/.
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Holders.” The Standard, June 3, 2018. https://www.standardmedia.co.ke/article/
2001282747/uhuru-issues-shoot-to-kill-order-for-illegal-firearm-holders
McIlwain, C. (1940). Constitutionalism: Ancient and Modern. Ithaca, NY: Cornell Universi
ty Press.
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Politics in Kenya. Nairobi and Harare: Sareat/MWENGO.
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dit of Parastatals 2016.” https://www.cohesion.or.ke/index.php/resources/downloads
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Voice of America (2018). “Kenyans March to Demand More Diversity in President’s Cabi
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Yash Ghai
Yash Ghai is Director of the Katiba Institute, was chair of the Constitution of Kenya
Review Commission and of Kenya’s National Constitutional Conference, and has pub
lished widely on constitutional reform and Kenyan politics.
Page 15 of 15

Ghai Constitutionalism

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Constitutions and constitutionalism

Constitutions and constitutionalism

Abstract and Keywords

Keywords: constitution, constitutionalism, power, reform, law, judiciary

Subscriber: Cambridge University Library; date: 20 January 2022

On this interpretation of constitutionalism, power belongs to state offices, not to individu­

15.2 A brief history of Kenya’s constitutions

Subscriber: Cambridge University Library; date: 20 January 2022

by the imperial government in London—which knew no bounds to what it could do in the

The 1963 independence Constitution—which reflected these disparities—was the basis on

Another important feature of the constitutional framework was a strong emphasis on

Subscriber: Cambridge University Library; date: 20 January 2022

(p. 210) 15.3 Search for a new Constitution

Subscriber: Cambridge University Library; date: 20 January 2022

Subscriber: Cambridge University Library; date: 20 January 2022

15.4 The orientation of the 2010 Constitution

The theme of the rule of law—which is central to constitutionalism—runs throughout the

Subscriber: Cambridge University Library; date: 20 January 2022

15.4.1 The challenge of implementation

Subscriber: Cambridge University Library; date: 20 January 2022

(p. 214) 15.4.2 The scheme of implementation

The Constitution established the CIC as a temporary, independent commission to oversee

Subscriber: Cambridge University Library; date: 20 January 2022

15.4.3 Implementation in practice

Subscriber: Cambridge University Library; date: 20 January 2022

Because the Constitution was specific on its own implementation—setting up a timetable

Subscriber: Cambridge University Library; date: 20 January 2022

As to the nature of the executive, it is not as inclusive as it is required to be in terms of

Subscriber: Cambridge University Library; date: 20 January 2022

(p. 218) 15.5 Conclusion

The social reform agenda characteristic of contemporary constitutions challenges exist­

Subscriber: Cambridge University Library; date: 20 January 2022

Subscriber: Cambridge University Library; date: 20 January 2022

Freedom House (2018). “Kenya Profile.” https://freedomhouse.org/report/freedom-

Ghai, Y. (2010). “Chimera of Constitutionalism: State, Economy and Society in Africa.” In

Ghai, Y. (2017). “Constitutionalism: African Perspectives.” In Indian Yearbook of Compara­

Judiciary of Kenya (2018). “Sustaining the Judiciary Transformation 2017–2021.”

Subscriber: Cambridge University Library; date: 20 January 2022

Subscriber: Cambridge University Library; date: 20 January 2022

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On this interpretation of constitutionalism, power belongs to state offices, not to individu

The social reform agenda characteristic of contemporary constitutions challenges exist

Ghai, Y. (2017). “Constitutionalism: African Perspectives.” In Indian Yearbook of Compara