The Making of the Constitution of Kenya
Kenya, like the rest of Africa, has gone through three sets of constitutional crises. The first related to the trauma of colonialism and struggle for independence; the second a period of constitutional dictatorship and the clamor for reform; and the third, most recent crisis, being one of identity, legitimacy and the inability of the state to discharge its functions, which has resulted in civil unrest, violent ethnic conflicts, poverty, social exclusion and inequality.
The Making of the Constitution of Kenya examines the processes, issues and challenges of constitution making, governance and legitimacy in that country and the lessons that can be learned for others on the continent. Equipping the reader with a sound historical perspective on constitutional developments and the crisis of constitutional legitimacy in Kenya, it gives invaluable insight into the normative and political complexities involved in evolving a truly democratic and widely acceptable constitutional order in Africa.
Charles O. Oyaya is Executive Director of the International Development InstituteAfrica (IDIA). He is a Governance, Health and Development Planning, Public Policy and Constitutional Law specialist. Dr Oyaya holds a Doctor of Philosophy (in Law) from the University of Nairobi, Kenya (2012).
Nana K. Poku is Research Professor of Health Economics at the Health Economics and AIDS Research Division (HEARD) at the University of KwaZulu-Natal, South Africa. He was formerly Executive Director, United Nations Commission on HIV/AIDS and Governance in Africa (200305) and Director of Operational Research, World Bank AIDS Treatment Acceleration Programme (200406).
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The Making of the Constitution of Kenya
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First published 2018
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2018 Charles O. Oyaya and Nana K. Poku
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Conceiving, drafting and ratifying a democratic constitution should aspire to be the most inclusive, consultative and creative public engagement. It is the means by which the most fundamental questions of social life and organization are addressed: who shall be included in we the people? Who should hold power by what means, and with what forms of accountability? How can we accommodate difference and safeguard minorities? What should be regarded as a citizens rights? How is the rule of law to be secured? How is legislation crafted, enacted, enforced and updated? In societies comprising millions of people: peace, stability and sustainability are not automatically brought about or the natural order of things. They require a combination of goodwill, trust and hard work qualities that are often in short supply when they are most needed.
A democratic constitution lays the basis to enable the accountability that makes politics possible. While it is the bulwark against political corruption and oppression, citizens need to continue to engage at every turn to be part of ensuring that the constitutional promise is delivered. So the very difficult transition to a democracy in which the citizenry has faith and every citizen has a voice can be a formidable and lengthy task often fraught with risk and beset by dashed hopes. The struggles of people in Kenya to achieve and secure democracy bear testament to this: through its decades-long progression from the fractious legacies of colonialism to its 2010 constitution and its efforts to finalize the popular mandate through the ballot. The ratification of the 2010 constitution was a triumph of principle over the impunity of raw power and an expression of faith by a people in their ability to create the conditions in which they can continue to address the many questions that fall under the heading, How shall we live?
It does not take a long span of history to elevate such an outcome over the countless trials that were involved in reaching it; but these trying events matter, since it is the difficult periods of deliberation and debate how these are organized and conducted which invest the constitution with its legitimacy. This fine study restores to us, the chronology and the particulars of how the sustained determination of so many Kenyans to establish a true constitutional democracy won out over deep-seated divisions and outbreaks of violence.
At a time when both politics and bureaucracy are frequently met with cynicism, it is truly restorative to be reminded of the patient, painstaking work of so many politicians, dedicated civil servants, civil society organizations and other non-state actors to secure a future fit for all of their fellow citizens. This is a story of high principle and pragmatic compromise, of good faith confronting narrow self-interest and of popular expectation finding its voice through the slow, unheralded work of committees and review bodies. Perhaps, most important of all, it is a testament to the belief that common values and shared interests can create an enduring legacy in a legal form; it is a manifestation of the fact that recognition of the vulnerability of ones compatriots when combined with rationality can win out over seemingly insurmountable odds the weight of history included. Whatever political turmoil might await Kenya and Kenyans, the achievement of their hard-won constitution is a potent reminder that Yes we can is not merely a slogan, but a reminder of what political engagement for the good of all can achieve.
