The State of Constitutionalism in Kenya in 2012: Embarking on a Journey to Reestablish a New Order

Abstract

After a strenuous journey of 20 years, perhaps longer, Kenya adopted and promulgated a new constitution on 27th August 2010. Before the adoption and promulgation of the constitution, the highly controversial and long standing constitutional review process had been the subject of debate and inquiry for years, including in earlier editions of the State of Constitutionalism reports. The review process encompassed the aspirations of Kenyans who sought to address multiple constitutional and governance problems that had blighted constitutionalism and Kenya’s democratic evolution for decades. Kivuva captures these aspirations aptly:66

[...] those clamouring for a new constitution did not just want to restructure the government and redefine their relationship to it; they also wanted to solve a number of governance problems associated with the country’s previous governments. These included: rethinking the logic of state power vis-à-vis the citizenry; re-asserting the correct relationships between the three branches of government; reforming state institutions; re-defining the relationship between the central (or national) government and the sub- national (or regional) governance structures; and instituting a new culture of leadership oriented towards redressing social exclusion.

In summary, it can be stated that Kenyans yearned for a more inclusive, accountable and caring government founded on the rule of law. Arguing that the aspirations expressed during the review process have been achieved, largely with the adoption of the new constitution, this chapter documents the state of constitutionalism, democratic evolution and governance in Kenya for the year 2012. As emerges from the report, significant milestones were achieved. Other than the year 2010 when the constitution was adopted and promulgated, it can indeed be argued that 2012 was perhaps the most critical year in Kenya’s evolving constitutionalism. This is the year when the implementation of the constitution gathered steam as the country prepared for the 2013 general elections – the first under this constitution. Other than outlining key features of the new constitution, the report outlines key timelines, legislative developments, key policy decisions and major court decisions related to the evolving constitutional and governance project in Kenya.

Keywords: Kenya, rule of law, constitutionalism, transformative constitutionalism, bill of rights