It is easy to think of one issue at a time, or one court case at a time. But how is the Constitution – and the courts that have such a responsibility to make the Constitution work – actually doing?

The author of a recent book explains that, from his “standpoint as a comparativist and as an outsider”, his purpose “is to highlight the contribution of the Kenyan courts, under the 2010 constitutional dispensation, to an ongoing global conversation about constitutions and constitutionalism.”

I believe that Kenyans might be interested to know of the assessment of the author of this extremely well-researched and detailed book.

What is Constitutionalism?

To ask the question is to invite argument. I suppose the most common meaning is on the lines of “the idea …that government can and should be legally limited in its powers, and that its authority or legitimacy depends on its observing these limitations.” (Stanford Encyclopedia of Philosophy). A country’s constitution, written or not, is the basic source of limits on government power.

The word has perhaps come to mean something like a way of thinking and reasoning about constitutions and their relationship with governance.

The author, Gautam Bhatia, a young, prolific Indian scholar, himself identifies several types including “commonwealth constitutionalism”, and “African constitutionalism”. But a key concept is “transformative constitutionalism” – which you will probably recognise as a reference to the nature of Kenya’s constitution: intended to introduce major changes in Kenya’s society and governance. Such transformation does not need just limits on government’s powers – but requires government, and people also, to do more than they have in the past.

So what does he conclude is Kenya’s contribution to that “ongoing global conversation”? He says he has given just “a flavour of the many and diverse issues that the Kenyan courts have grappled with, in fifteen years of working a transformative Constitution. From adjudicating on the validity of a national biometric identification scheme to evolving a jurisprudence of fourth branch institutions, from grappling with how to make public participation a reality to ruling on free speech and criminal defamation, there is enough already for a lifetime’s conversation.”

To get to this conclusion he also considers in depth some major constitutional issues that reached the courts.

The BBI

The BBI case went from High Court to Court of Appeal to Supreme Court, arising out of a politically negotiated proposal to make many changes in the Constitution, several of which would not be transformative in the sense of making things better.

The author puts special emphasis on the role of the people. This is most obvious in the way all the courts rejected the idea that a People’s Initiative to change the Constitution could not be initiated by the President.

But, in the other most striking aspect of the case, the people were also a central concern. This was the “basic structure” doctrine – the idea that certain fundamental aspects of a constitution may not be changed by ordinary amendment processes. And in the High Court’s treatment of that issue the place of the people in making or changing a constitution was particularly central. The court drew on the experience of constitution making in Kenya from 2002-2010 – a very participatory process or series of processes. 

The author shows how even the Supreme Court, which on the face of it rejected the basic structure doctrine, was  generally focussed on the role of the people in the constitution making process.

And he also manages to extract from the various judgments some hope that if we ever need a referendum on constitutional amendment it may not simply be a single Yes/No question for all the proposals needing a referendum.

The CDF and CASs

In the cases about the constituency development fund and the President’s power to appoint Cabinet Administrative Secretaries, Bhatia sees the courts opposing efforts to amass or reclaim powers. Also against recentralisation in the case of the CDF. The cases asserted the importance of devolution in the one and of limiting executive power in the other, under the Constitution. And they were resisting what Bhatia calls the “weight of history” – and returns to a past that the Constitution was designed to move away from.

 Land and housing

He then turns to two cases on the right to housing (which is of courser about land) – with a less enthusiastic assessment.   Both were advances on the previous law which gave virtually no protection to people whose homes are on land they do not own. The whole idea of the right to housing first came into Kenyan law in the 2010 constitution – though the idea had underpinned various previous projects and campaigns.

MituBel was the first socio economic rights case to get to the Supreme Court. Musembi – actually about private land – soon followed. Land, of course, has been at the base of Kenya’s troubles from the beginning, and gets only more complex as land grabbing becomes a plague and land ownership vulnerable. A ceiling on land ownership is one of the very areas that the constitution requires law on but nothing has happened. 

Bhatia suggests that while these were not truly transformative decisions they did “birth green shoots towards transformative constitutionalism”.

Limuru Golf Club

He then turns to a case not much discussed: about the rights of women members of the Limuru Golf Club. They could be members but could not be on the Golf Committee. The court was confronted with the questions of what the Constitution really meant when it said a “person” – not just the state – must not discriminate against another person – and that the Bill of Rights binds all persons. The “High Court articulated a transformative vision of horizontality under the Kenyan Constitution”.

The court did not go as far as it might but still made a major step towards horizontal application of human rights (between citizens not just the duty of the state towards the people).

Election petition

The final major case studied was the Presidential election petition of 2022. The one of 2017 had, of course, rocked the continent when the election was declared void. In 2022 the court upheld the election but did clarify, in Bhatia’s view the legal situation was better and the Court “went at least some way to realising the 2010 Constitution’s transformative goal of resolving Presidential election disputes in the courtroom, and through constitutional law”.

The author finally looks more briefly at a few other fascinating cases in various courts. Because they get little attention I choose a case before Senior Principal Magistrate H. Opondo who rejected the police request for 10 days detention of an accused to “complete their inquiries” –something I feel the courts too often go along with. This magistrate did not: “she began her analysis by noting that ‘the acontextual and simplistic pitting of ‘public order, peace and security’ against the personal liberty interests and autonomy of the Applicant … is a dangerous anti-liberty ethos which was rejected by the Constitution of Kenya”.

It is common these days to hear or read complaints about the “corrupt judiciary”. Indeed, some of these reports are very worrying. This book is a valuable reminder that the Kenyan judiciary has, since 2010, played a remarkable role in protecting the transformative constitution against the efforts of particularly the political class to sideline, or simply use, the people.

It reminds us forcibly of the crucial role of the people in ensuring the transformation that Kenyans wanted through the Constitution. And the author dedicates it to “The people of Kenya, with gratitude and admiration”.

The book is: Transformative Constitutionalism and Kenya: Law-making, Political Process and the State (2010 – 2025). A paperback version is available in Kenya before it is overseas (Vita Books).

This article was first published by The Star Newspaper