Our Kenya

Constitution of Kenya 2010

5 min read

The Constitution of Kenya 2010, promulgated on August 27, 2010, was the most significant institutional reform in Kenya's history since independence. It replaced the heavily amended independence constitution, which had concentrated near-absolute power in the presidency. The new constitution created 47 county governments, established a bill of rights, constrained executive power, and reformed the judiciary and electoral systems. It was the product of decades of struggle by civil society, opposition politicians, and ordinary Kenyans who had demanded a more accountable, decentralized state. Kibaki signed it, but he did not champion it. The constitution was forced on him by the political crisis that followed the 2007-08 violence.

The demand for constitutional reform had deep roots. The independence constitution of 1963 had included a federal system, but Jomo Kenyatta dismantled it almost immediately, centralizing power in the presidency. Subsequent amendments under Kenyatta and Daniel arap Moi expanded executive authority, eliminated checks and balances, and created what critics called an "imperial presidency." By the 1990s, the opposition and civil society were demanding a new constitution that would limit presidential power, protect human rights, and devolve governance.

The NARC coalition had promised a new constitution within 100 days of taking office in 2002. That promise was broken. The process dragged on for years, producing the Bomas Draft, a comprehensive reform document developed through a participatory process. But when Kibaki's government presented its version, the Wako Draft, in 2005, it had been watered down. The prime minister position promised to Raila Odinga was missing. Devolution was weak. Presidential powers remained largely intact. Raila and the opposition campaigned against it. The referendum result, 58% to 42% for "No," was a humiliating defeat for Kibaki.

The violence of 2007-08 created the political will that earlier efforts had lacked. The Kofi Annan mediation made constitutional reform a core agenda item of the National Accord. This time, the process was more inclusive. A Committee of Experts, led by Nzamba Kitongo and later Yash Ghai, drafted a new constitution incorporating input from civil society, political parties, and public consultations. The draft was ambitious: a bicameral parliament, devolved county governments, an independent judiciary, a bill of rights that included economic and social rights, and limits on presidential power.

The 2010 referendum campaign was intense. The "Yes" side, backed by Raila and much of the Grand Coalition, framed the new constitution as a chance to end impunity, reduce ethnic winner-take-all politics, and bring governance closer to the people. The "No" side, a coalition of religious groups concerned about abortion and Muslim marriage provisions, some Kikuyu elites worried about losing central control, and opportunistic politicians, argued the constitution was flawed and rushed. Kibaki remained largely silent, a telling sign of his ambivalence.

The referendum passed decisively, 67% to 33%. Devolution, the most transformative aspect, created 47 counties with elected governors and county assemblies. At least 15% of national revenue, later increased to a minimum of 35%, would be devolved to counties. This fundamentally altered Kenya's political economy, shifting resources and power away from Nairobi. The judiciary was reformed, with a Supreme Court and a more independent Judicial Service Commission. The bill of rights was expansive, protecting not just civil and political rights but also economic, social, and cultural rights.

Presidential power was constrained, at least on paper. The president could no longer unilaterally dissolve parliament, appoint judges, or control the electoral commission. A two-term limit was entrenched. The attorney general, previously a political appointee, became an independent constitutional office. These were significant checks, though implementation depended on political will and institutional strength.

The constitution's impact has been profound but contested. Devolution has brought governance closer to people, but county governments are plagued by corruption and inefficiency. The judiciary has become more independent, delivering landmark rulings that previous courts would never have dared. The bill of rights has empowered civil society and marginalized groups. But the presidency remains powerful, and successive presidents, Uhuru Kenyatta and William Ruto, have chafed against the constraints.

Kibaki's legacy on the constitution is paradoxical. He did not want it in its final form, particularly the devolution provisions. But he signed it, oversaw the referendum, and began the implementation process. The 2010 Constitution is not his achievement in the way free education or economic recovery are. But it is inseparable from his presidency, the product of both his failures and his eventual willingness to accept structural reform.

See Also

Sources

  1. Republic of Kenya. Constitution of Kenya, 2010. http://www.kenyalaw.org/
  2. Ghai, Yash, and Jill Cottrell Ghai. Kenya's Constitution: An Instrument for Change. Katiba Institute, 2011.
  3. "The Making of Kenya's 2010 Constitution," International IDEA, 2011. https://www.idea.int
  4. Branch, Daniel, and Nic Cheeseman. "Democratization, Sequencing, and State Failure in Africa." African Affairs 108, no. 430 (2009). https://academic.oup.com/afraf

Backlinks