Constitutional Law at Kenya
Constitutional law in Kenya is based on the Constitution of Kenya 2010, which is the supreme law of the country. It replaced the previous constitution that was in place since 1963, and it marked a significant shift in Kenya’s legal and political landscape. The 2010 Constitution was enacted through a referendum and aims to address long-standing issues of governance, human rights, and the rule of law.
1. Historical Context
Pre-Independence: Before Kenya gained independence in 1963, it was a British colony with a constitution based on colonial governance, which did not reflect the aspirations of the Kenyan people.
Post-Independence (1963-2010): After independence, Kenya adopted the Independence Constitution, which initially established a parliamentary system of government. Over the years, the Independence Constitution was amended multiple times, often to increase the power of the executive and diminish checks on government power. This led to increasing dissatisfaction with the concentration of power in the hands of the President, which fueled demands for constitutional reform.
Constitutional Review: From the 1990s, there were growing calls for constitutional reforms. This process culminated in the drafting and adoption of the Constitution of Kenya 2010, following a national referendum in 2010. This Constitution introduced major reforms aimed at decentralizing power, improving governance, and enhancing the protection of human rights.
2. Structure of the Constitution
The 2010 Constitution of Kenya is organized into 18 chapters, containing Constitutional Bills of Rights, the structure of government, and the framework for governance. The Constitution also includes Schedules which contain details on various administrative matters.
Key sections include:
Chapter 1: Sovereignty of the people and the supremacy of the Constitution.
Chapter 2: The Republic and its Territory.
Chapter 3: The Bill of Rights.
Chapter 4: The National Assembly.
Chapter 5: The Executive.
Chapter 6: Leadership and Integrity.
Chapter 7: The Judiciary.
Chapter 8: Devolution.
Chapter 9: Public Finance.
Chapter 10: Public Service.
Chapter 11: National Security.
Chapter 12: Land and Environment.
Chapter 13: The Commission for the Implementation of the Constitution.
3. Key Principles of the Constitution
The 2010 Constitution enshrines several fundamental principles:
Sovereignty of the People: Sovereignty resides in the people, and all power comes from them.
Rule of Law: The Constitution mandates the rule of law, meaning that all actions of the government must be carried out in accordance with the law, and there must be accountability for unlawful actions.
Separation of Powers: Power is divided among three branches of government: the executive, the legislature, and the judiciary.
Equality and Non-Discrimination: The Constitution guarantees equality before the law and prohibits discrimination on the basis of sex, race, ethnicity, religion, or disability.
Democracy and Accountability: The Constitution emphasizes democratic governance, including free and fair elections, political pluralism, and the accountability of leaders to the people.
Decentralization and Devolution: One of the most notable features of the 2010 Constitution is the emphasis on devolution, establishing 47 counties with their own governments to bring governance closer to the people.
4. Structure of Government
The government of Kenya is based on a parliamentary-presidential system, where power is divided between the executive, the legislature, and the judiciary.
Executive Branch
President: The President is both the head of state and government. The President is elected through direct elections by the people for a 5-year term (renewable once). The President holds significant powers, including being the Commander-in-Chief of the armed forces, representing Kenya in foreign affairs, and appointing ministers.
Deputy President: The Deputy President is elected alongside the President and serves as the second-in-command. The Deputy President is also responsible for supporting the President in the executive functions of government and acting as President in the absence of the President.
Cabinet: The President appoints Cabinet Secretaries to head various government ministries. The Cabinet helps in formulating government policy, and these officials are accountable to the National Assembly.
Legislative Branch
Parliament: Kenya has a bicameral legislature consisting of:
National Assembly: The National Assembly has 350 members, 290 of whom are elected directly, 47 elected to represent women (one per county), and 12 appointed to represent special interest groups (youth, persons with disabilities, and minorities). The National Assembly is responsible for making laws, scrutinizing the government, and approving the national budget.
Senate: The Senate has 67 members, 47 elected to represent counties, 16 women elected from special interest groups, and 4 nominated to represent marginalized groups. The Senate plays an important role in representing the interests of the counties and reviewing laws passed by the National Assembly.
Judiciary
The Judiciary in Kenya is independent and plays a critical role in interpreting the Constitution, ensuring laws are consistent with it, and protecting the rights of individuals.
Supreme Court: The highest court in Kenya, which has the authority to interpret the Constitution and make binding decisions on constitutional matters. The Supreme Court also plays a role in adjudicating presidential election disputes.
High Court: The High Court has jurisdiction over all civil and criminal cases and can hear appeals from lower courts.
Lower Courts: The judicial system also includes Magistrate Courts, Kadhi Courts (for matters related to Islamic law), and other specialized tribunals.
5. Bill of Rights
The Bill of Rights (Chapter 4) of the 2010 Constitution guarantees wide-ranging human rights and freedoms, including:
Right to Life.
Freedom of Expression and Freedom of the Media.
Freedom of Assembly and Association.
Equality Before the Law and Non-Discrimination.
Freedom from Torture and Cruel, Inhuman, or Degrading Treatment.
Access to Information.
Economic and Social Rights (including education, health care, and housing).
It also establishes a framework for constitutional remedies, meaning individuals can seek redress from courts if their rights are violated.
6. Devolution and County Governments
One of the key innovations of the 2010 Constitution is the establishment of devolution, which divides Kenya into 47 counties, each with its own government, headed by an elected Governor and a County Assembly. This aims to bring governance closer to the people, promote local development, and improve service delivery.
County Governments: The Constitution grants counties a degree of autonomy, with powers in areas like health, education, agriculture, and infrastructure development.
Intergovernmental Relations: The Constitution establishes mechanisms for cooperation and conflict resolution between national and county governments.
7. Constitutional Amendments
The Constitution of Kenya is difficult to amend. Amendments can be made through two methods:
Parliamentary Method: A proposed amendment must be passed by a two-thirds majority in both the National Assembly and the Senate, followed by approval by a majority of voters in a referendum.
Popular Initiative: Amendments can also be initiated by citizens through a popular initiative, where a proposed amendment must be backed by at least one million registered voters. This method also requires a referendum.
This makes the Constitution relatively rigid, and constitutional amendments are often seen as significant events in Kenya’s political landscape.
8. Judicial Review and Constitutional Enforcement
Judicial Review: The Constitution of Kenya allows the Judiciary to review the actions of the executive and legislature to ensure they are consistent with the Constitution. Courts can declare laws or executive actions unconstitutional if they violate constitutional provisions.
Constitutional Enforcement: The Judiciary has the responsibility to protect constitutional rights, and individuals can approach the courts to challenge violations of their rights. The Independent Electoral and Boundaries Commission (IEBC) also plays a crucial role in ensuring that elections are conducted according to constitutional principles.
9. Recent Constitutional Developments
The BBI (Building Bridges Initiative): The BBI was a constitutional reform initiative aimed at addressing political, social, and economic challenges in Kenya. The initiative proposed several amendments, including the creation of new executive positions and changes to the structure of the Senate and National Assembly. However, the BBI process has faced legal challenges, with the Supreme Court ruling that it could not proceed without following the proper procedures.
10. Key Constitutional Principles in Kenya
Democracy and Accountability: The Constitution mandates regular elections and accountability mechanisms for all government officials.
Human Rights: A strong framework for the protection and promotion of human rights.
Rule of Law: Government actions must conform to the law, with clear mechanisms for holding the government accountable through judicial review.
Separation of Powers: Clear division of authority among the executive, legislative, and judicial branches.
Devolution: A system of governance that empowers local governments and promotes regional development.
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