The Kenyan Constitution adopted in December 2010 represents an attempt to transcend the ethnic bargaining that characterized previous constitutional arrangements. The 2010 constitution emerged from demands for constitutional reform following the 2007-2008 post-election violence, which revealed the dangers of unaccountable executive power and ethnic competition for control of the state.
The 2010 constitution's preamble explicitly references diversity as a foundational feature of Kenya, acknowledging Kenya's multi-ethnic character. The constitution protects individual rights and specifically protects minority rights, creating constitutional frameworks for protecting communities against majoritarianism and state discrimination. The Bill of Rights applies to all Kenyans regardless of ethnicity.
A central feature of the 2010 constitution is devolution of governmental power to county governments. Kenya was divided into forty-seven counties, each with elected governors and county assemblies. Devolution reflected recognition that local and regional identities were salient to Kenyans and that local governance needed responsiveness to community concerns. Devolution also served to distribute political power more broadly, reducing the degree to which control of the national government determined access to state resources.
The constitution's structure attempted to manage ethnic politics through constitutional institutions. The presidential system incorporated checks and balances. The constitutional court provided a forum for addressing disputes and protecting rights. Constitutional commissions including the National Cohesion and Integration Commission (NCIC) were established to address ethnic tensions and promote national unity.
The constitution's language provisions reflected an attempt to transcend ethnic politics while respecting linguistic diversity. English and Swahili were designated as official languages. Counties could designate additional languages for use in county institutions. This arrangement attempted to balance the cosmopolitan and national functions of English and Swahili with recognition that linguistic minorities had interests in their heritage languages.
However, the 2010 constitution's implementation has revealed both its strengths and limitations. The constitutional order has provided more accountability and predictability than previous arrangements. The devolution system has created more local responsiveness in some areas. Simultaneously, ethnic politics persist. County governance has sometimes reproduced ethnic patterns. Devolution has not eliminated ethnic competition for national office. Implementing the constitution's ideals of national unity remains an ongoing challenge.
The relationship between the constitution and cross-ethnic identity remains complex. The constitution provides frameworks for transcending ethnicity and protecting minorities. Constitutional institutions have at times functioned to protect cross-ethnic values and individual rights. Simultaneously, implementation of the constitution occurs within a social context where ethnic identity remains salient.
See Also
- Devolution and County Politics
- National Cohesion and Integration Commission
- Bill of Rights Kenya
- Post-Election Violence and Reform
- Constitutional Protections for Minorities
Sources
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Cohen, D. W. (1994). The Combing of History. University of Chicago Press. https://www.press.uchicago.edu/
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Ghai, Y., & Cottrell, J. (2010). Constitutions and the Caucus: Structures and Substance in African Post-Conflict Constitutionalism. Journal of Eastern African Studies, 4(1), 107-131. https://doi.org/10.1080/17531050903415122
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Southall, A. W. (1980). The Illusion of Tribe. Journal of Asian and African Studies, 15(1-2), 28-50. https://journals.sagepub.com/