Skip to main content Accessibility help
×
Hostname: page-component-848d4c4894-8bljj Total loading time: 0 Render date: 2024-06-22T00:12:20.665Z Has data issue: false hasContentIssue false

2 - Making and Remaking Kenya’s Constitution

Published online by Cambridge University Press:  03 November 2022

Tom Ginsburg
Affiliation:
University of Chicago
Sumit Bisarya
Affiliation:
International Institute for Democracy and Electoral Assistance
Get access

Summary

After a constitutional amendment in 1992 ended one-party rule and introduced presidential term limits, Kenya had two full-blown constitution-making processes in relatively quick succession: the first ran from 2000 to 2005, ending when a draft constitution was rejected in a referendum; the second, from 2008 to 2010, “succeeded” in August 2010 when Kenya adopted a new constitution. The second process was designed with hindsight – the politicians who devised it consciously sought to avoid the problems that had beset its predecessor. The adoption of a new constitution in 2010 has not led to constitutional stability, however, and reform proposals continue to be debated. The chapter also reflects on the role of a foreign member of the Committee of Experts charged with the drafting of the initial text.

Type
Chapter
Information
Publisher: Cambridge University Press
Print publication year: 2022

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

References

Andreassen, Bård Anders and Tostensen, Arne. 2006. “Of Oranges and Bananas: The 2005 Kenya Referendum on the Constitution.” Chr Michelsen Institute Working Paper WP: 13, 2006. www.cmi.no/publications/publication/?2368=of-oranges-and-bananas.Google Scholar
Annan, Kofi and Griffiths, Martin. 2009. “The Prisoner of Peace – An Interview with Kofi A. Annan.” Centre for Humanitarian Dialogue, Geneva, Switzerland.Google Scholar
Balaton-Chrimes, Samantha. 2021. “Who Are Kenya’s 42(+) Tribes? The Census and the Political Utility of Magical Uncertainty.Journal of Eastern African Studies 15(1): 4362.Google Scholar
Berman, Bruce, Cottrell, Jill and Ghai, Yash. 2009. “Patrons, Clients, and Constitutions: Ethnic Politics and Political Reform in Kenya.” Canadian Journal of African Studies 43(3): 462506. Google Scholar
Boswell, Alan. 2020. “The Court Ruling That Just Upended Kenyan Politics: Interview with Willy Mutunga, former Chief Justice of Kenya.” The Horn, Season 2, episode 19, All Audio, June 2, 2020. International Crisis Group. Audio Length: 34:12 (vurbl.com).Google Scholar
Cheeseman, Nic. 2008. “The Kenyan Elections of 2007: An Introduction.” Journal of Eastern African Studies 2: 166184.Google Scholar
Cheeseman, Nic, Kanyinga, Karuti and Lynch, Gabrielle. 2020. “The Political Economy of Kenya: Community, Clientelism, and Class,” pp. 125, in Cheeseman, Nic, Kanyinga, Karuti and Lynch, Gabrielle, eds. The Oxford Handbook of Kenyan Politics. Oxford: Oxford University Press.Google Scholar
Chege, Michael. 2008. “Kenya: Back from the Brink?Journal of Democracy 19: 125139.Google Scholar
Cohen, Roger. 2008. “How Kofi Annan Rescued Kenya.” New York Review of Books, August 14, 2008, www.nybooks.com/articles/archives/2008/aug/14/how-kofi-annan-rescued-kenya/?pagination=false.Google Scholar
Cottrell, Jill and Ghai, Yash. 2007. “Constitution Making and Democratization in Kenya (2000–2005).” Democratization 14: 1–25.Google Scholar
D’arcy, Michelle. 2020. “Devolution and County Government,” pp. 251266, in Cheeseman, Nic, Kanyinga, Karuti and Lynch, Gabrielle, eds. The Oxford Handbook of Kenyan Politics. Oxford: Oxford University Press.Google Scholar
Elster, Jon. 1995. “Forces and Mechanisms in the Constitution-Making Process.” Duke Law Journal 45: 364396.Google Scholar
Gargarella, Roberto. 2016. “When Is a Constitution Doing Well? The Alberdian Test in the Americas,” pp. 99193, in Ginsburg, Tom and Huq, Aziz, eds. Assessing Constitutional Performance. New York: Cambridge University Press.Google Scholar
Ghai, Yash 2010. “The Chimera of Constitutionalism: State, Economy and Society in Africa,” pp. 313331, in Deva, Swati, ed. Law and (in)Equality: Contemporary Perspectives. Lucknow, India: Eastern Book Co.Google Scholar
Ghai, Yash. 2019. “Civil Society, Participation and the Making of Kenya’s Constitution,” pp. 212234, in Landau, David and Learner, Hanna, eds. Comparative Constitution Making. Cheltenham: Edward Elgar Publishing.Google Scholar
Ghai, Yash. 2020. “Why the Bomas Draft Is the Best Constitution We Never Had,” Daily Nation, August 22, 2020.Google Scholar
Hornsby, Charles. 2013. Kenya: A History since Independence. London: I.B. Taurus.Google Scholar
Horowitz, Donald L. 2021. Constitutional Processes and Constitutional Commitment. New Haven: Yale University Press.Google Scholar
Juma, Monica Kathina. 2009. “African Mediation of the Kenyan Post-2007 Election Crisis.” Journal of Contemporary African Studies 27: 407430. Google Scholar
Kirkby, Coel and Murray, Christina. 2016. “Constitution-Making in Anglophone Africa: We the People?,” in pp. 86–113, Ndulo, Muna and Gazibo, Mamoudou, eds. Growing Democracy in Africa: Elections, Accountable Governance, and Political Economy. Newcastle upon Tyne: Cambridge Scholars Publishing.Google Scholar
Kramon, Eric and Posner, Daniel N.. 2011. “Kenya’s New Constitution.” Journal of Democracy 22: 89103.Google Scholar
Leftie, Peter and Mutiga, Murithi. 2010. “Kenya: Secrets of Naivasha Deal Unraveled,” The Nation, January 30, 2010.Google Scholar
Lindenmayer, Elisabeth and Kay, Josie Lianna. 2009. A Choice for Peace? The Story of 41 Days of Mediation in Kenya. New York: International Peace Institute. www.ipinst.org/wp-content/uploads/publications/kenyamediation_epub.pdf.Google Scholar
Lonsdale, J. 1994. “Moral Ethnicity and Political Tribalism,” in pp. 131150, Kaarsholm, P and Huttin, J, eds. Inventions and Boundaries: Historical and Anthropological Approaches to the Study of Ethnicity and Nationalism. Roskilde: Institute for Development Studies, Roskilde University.Google Scholar
Lumumba, P. L. O. 2008. Kenya’s Quest for a Constitution: The Postponed Promise. Nairobi, Kenya: The Jomo Kenyatta Foundation.Google Scholar
Macharia, James, and Obulutsa, George. 2010. “Kenya Votes ‘Yes’ to New Constitution.” Reuters, August 5, 2010.Google Scholar
Miyandazi, Victoria. 2021. Equality in Kenya’s 2010 Constitution: Understanding the Competing and Interrelated Conceptions. Oxford: Hart.Google Scholar
Mude, Mude Dae. 2009. Fighting for Bomas: In Search of the Kenya I Want. Nairobi: Mvule Africa Publishers.Google Scholar
Mueller, Susanne D. 2008. “The Political Economy of Kenya’s Crisis.” Journal of Eastern African Studies 2: 185210.Google Scholar
Murray, Christina. 2020. “Political Elites and the People: Kenya’s Decade-Long Constitution-Making Process,” pp. 190216, in Negretto, Gabriel, ed. Redrafting Constitutions in Democratic Regimes: Theoretical and Comparative Perspectives. Cambridge: Cambridge University Press.Google Scholar
Mutua, Makau. 2008. Kenya’s Quest for Democracy: Taming Leviathan. Boulder, Colorado: L. Rienner Publishers.Google Scholar
Mutunga, Willy. 1999. Constitution-making from the Middle: Civil Society and Transition Politics in Kenya, 1992–1997. Nairobi and Harare: Sareat/MWENGO.Google Scholar
Ng’etich, Jacob. 2010. “Experts’ Long Road to Draft Constitution.” Daily Nation, April 9, 2010.Google Scholar
Odinga, Raila. 2010. “Speech at Promulgation of Constitution.” Nairobi. www.capitalfm.co.ke/news/2010/08/full-speech-by-kenya-pm/.Google Scholar
Oxfam. 2018. “Kenya: Extreme Poverty in Numbers.” Oxfam International Extreme Inequality and Poverty Campaign Article. Kenya: Oxfam International.Google Scholar
Oyaya, Charles O., and Poku, Nana K.. 2018. The Making of the Constitution of Kenya: A Century of Struggle and the Future of Constitutionalism. Abingdon, Oxfordshire: Routledge.Google Scholar
Pommerolle, Marie-Emmanuelle. 2020. “The 2017 Elections and the Peace Narrative (2013–2015),” pp. 109120, in Cheeseman, Nic, Kanyinga, Karuti and Lynch, Gabrielle, eds. The Oxford Handbook of Kenyan Politics. Oxford: Oxford University Press.Google Scholar
Shah, Seema. 2019. “The Indomitable Yash Pal Ghai – Part 4: The Defender of Justice.” Elephant, June 28, 2019.Google Scholar
Sihanya, Ben. 2012. “Constitutional implementation in Kenya, 2010–2015: Challenges and prospects,” December 5, 2012, Friedrich-Ebert-Stiftung Kenya Occasional Paper, No. 5.Google Scholar
Throup, David W. 2008. “The Count.” Journal of Eastern African Studies 2(2): 290304.Google Scholar
Throup, David W. 2020. “Jomo Kenyatta and the Creation of the Kenyan State (1963–1978),” pp. 4355, in Cheeseman, Nic, Kanyinga, Karuti and Lynch, Gabrielle, eds. The Oxford Handbook of Kenyan Politics. Oxford: Oxford University Press.Google Scholar
Whitaker, Beth Elise, and Giersch, Jason. 2009. “Voting on a Constitution: Implications for Democracy in Kenya,” Journal of Contemporary African Studies 27: 120.Google Scholar
1963 Constitution of Kenya. Nairobi: Government Printer.Google Scholar
Committee of Experts on Constitutional Review. 2009. “Harmonized Draft Constitution of Kenya Published on 17th November, 2009 by the Committee of Experts on Constitutional Review Pursuant to Section 32(1)(a)(i) of the Constitution of Kenya Review Act, 2008.” Nairobi, Kenya: Committee of Experts.Google Scholar
Committee of Experts on Constitutional Review. 2010a. “The Report of the Committee of Experts on Constitutional Review issued on the submission of the Reviewed Harmonized Draft Constitution to the Parliamentary Select Committee on Constitutional Review, 8th January, 2010.” Nairobi, Kenya: Committee of Experts.Google Scholar
Committee of Experts on Constitutional Review. 2010b. “Final Report of the Committee of Experts on Constitutional Review.” Nairobi, Kenya: Committee of Experts.Google Scholar
Constitution of Kenya Review Act, Act 13 of 1997, as amended by Act 6 of 1998, Act 5 of 2000 and Act 2 of 2001 (Review Act, 1997).Google Scholar
Constitution of Kenya Review Act, Act 9 of 2008, as amended by Act 6 of 2009 and Act 9 of 2009 (Review Act, 2008).Google Scholar
Constitution of Kenya Review Commission. 2002. The People’s Choice: The Report of the Constitution of Kenya Review Commission (Short Version). Nairobi, Kenya.Google Scholar
Constitution of Kenya Review Commission. 2004. The Draft Constitution of Kenya 2004 adopted by the National Constitutional Conference on 15 March 2004 (Bomas Draft). Nairobi, Kenya.Google Scholar
Constitution of Kenya Review Commission. 2005. The Final Report of the Constitution of Kenya Review Commission. Nairobi, Kenya.Google Scholar
Independent Electoral and Boundaries Commission & others v David Ndii & others. 2021. [2021] EKLR.Google Scholar
Kenya National Dialogue and Reconciliation. 2008b. “Longer-term issues and solutions: Constitutional Review,” 4 March 2008.Google Scholar
Mwau v Independent Electoral and Boundaries Commission. 2017. Supreme Court, Nairobi, Presidential Election Petition 2 & 4 of 2017: November 20, 2017.Google Scholar
Ndii & others v Attorney General & others. 2021. [2021] EKLR.Google Scholar
Njoya and others v Attorney-General and others [2004] LLR 4788 (HCK).Google Scholar
Presidential Taskforce on Building Bridges. 2019. To a United Kenya: From a Nation of Blood Ties to a Nation of Ideals; A Report by the Presidential Taskforce on Building Bridges to Unity Advisory. October 2019 Building Bridges. Nairobi, Kenya.Google Scholar
Raila Amolo Odinga v Independent Electoral and Boundaries Commission. 2017. Supreme Court, Nairobi, Presidential Election Petition 1 of 2017: September 20, 2017.Google Scholar
Report of the Committee of Eminent Persons. 2006. Nairobi: Government Printer (Kiplagat Report.)Google Scholar
Report of the Commission of Inquiry into Post-Election Violence. 2008. Nairobi: Government Printer (Waki Report.)Google Scholar
Report of the Independent Review Commission on the General Elections Held in Kenya on 27th December, 2007. 2008. Nairobi: Nairobi: Government Printer (Kriegler Report.)Google Scholar
Steering Committee on the Implementation of the Building Bridges to a United Kenya. 2020. “Report of the Steering Committee on the Implementation of the Building Bridges to a United Kenya Taskforce Report: From a Nation of Blood Ties to a Nation of Ideals.” Nairobi.Google Scholar
Verbatim Report of Proceedings of Plenary Meeting of the Committee of Experts on Constitutional Review held on June 10, 2009 in Delta House, Westlands, Nairobi.Google Scholar
1963 Constitution of Kenya. Nairobi: Government Printer.Google Scholar
Committee of Experts on Constitutional Review. 2009. “Harmonized Draft Constitution of Kenya Published on 17th November, 2009 by the Committee of Experts on Constitutional Review Pursuant to Section 32(1)(a)(i) of the Constitution of Kenya Review Act, 2008.” Nairobi, Kenya: Committee of Experts.Google Scholar
Committee of Experts on Constitutional Review. 2010a. “The Report of the Committee of Experts on Constitutional Review issued on the submission of the Reviewed Harmonized Draft Constitution to the Parliamentary Select Committee on Constitutional Review, 8th January, 2010.” Nairobi, Kenya: Committee of Experts.Google Scholar
Committee of Experts on Constitutional Review. 2010b. “Final Report of the Committee of Experts on Constitutional Review.” Nairobi, Kenya: Committee of Experts.Google Scholar
Constitution of Kenya Review Act, Act 13 of 1997, as amended by Act 6 of 1998, Act 5 of 2000 and Act 2 of 2001 (Review Act, 1997).Google Scholar
Constitution of Kenya Review Act, Act 9 of 2008, as amended by Act 6 of 2009 and Act 9 of 2009 (Review Act, 2008).Google Scholar
Constitution of Kenya Review Commission. 2002. The People’s Choice: The Report of the Constitution of Kenya Review Commission (Short Version). Nairobi, Kenya.Google Scholar
Constitution of Kenya Review Commission. 2004. The Draft Constitution of Kenya 2004 adopted by the National Constitutional Conference on 15 March 2004 (Bomas Draft). Nairobi, Kenya.Google Scholar
Constitution of Kenya Review Commission. 2005. The Final Report of the Constitution of Kenya Review Commission. Nairobi, Kenya.Google Scholar
Independent Electoral and Boundaries Commission & others v David Ndii & others. 2021. [2021] EKLR.Google Scholar
Kenya National Dialogue and Reconciliation. 2008b. “Longer-term issues and solutions: Constitutional Review,” 4 March 2008.Google Scholar
Mwau v Independent Electoral and Boundaries Commission. 2017. Supreme Court, Nairobi, Presidential Election Petition 2 & 4 of 2017: November 20, 2017.Google Scholar
Ndii & others v Attorney General & others. 2021. [2021] EKLR.Google Scholar
Njoya and others v Attorney-General and others [2004] LLR 4788 (HCK).Google Scholar
Presidential Taskforce on Building Bridges. 2019. To a United Kenya: From a Nation of Blood Ties to a Nation of Ideals; A Report by the Presidential Taskforce on Building Bridges to Unity Advisory. October 2019 Building Bridges. Nairobi, Kenya.Google Scholar
Raila Amolo Odinga v Independent Electoral and Boundaries Commission. 2017. Supreme Court, Nairobi, Presidential Election Petition 1 of 2017: September 20, 2017.Google Scholar
Report of the Committee of Eminent Persons. 2006. Nairobi: Government Printer (Kiplagat Report.)Google Scholar
Report of the Commission of Inquiry into Post-Election Violence. 2008. Nairobi: Government Printer (Waki Report.)Google Scholar
Report of the Independent Review Commission on the General Elections Held in Kenya on 27th December, 2007. 2008. Nairobi: Nairobi: Government Printer (Kriegler Report.)Google Scholar
Steering Committee on the Implementation of the Building Bridges to a United Kenya. 2020. “Report of the Steering Committee on the Implementation of the Building Bridges to a United Kenya Taskforce Report: From a Nation of Blood Ties to a Nation of Ideals.” Nairobi.Google Scholar
Verbatim Report of Proceedings of Plenary Meeting of the Committee of Experts on Constitutional Review held on June 10, 2009 in Delta House, Westlands, Nairobi.Google Scholar

Official Documents

1963 Constitution of Kenya. Nairobi: Government Printer.Google Scholar
Committee of Experts on Constitutional Review. 2009. “Harmonized Draft Constitution of Kenya Published on 17th November, 2009 by the Committee of Experts on Constitutional Review Pursuant to Section 32(1)(a)(i) of the Constitution of Kenya Review Act, 2008.” Nairobi, Kenya: Committee of Experts.Google Scholar
Committee of Experts on Constitutional Review. 2010a. “The Report of the Committee of Experts on Constitutional Review issued on the submission of the Reviewed Harmonized Draft Constitution to the Parliamentary Select Committee on Constitutional Review, 8th January, 2010.” Nairobi, Kenya: Committee of Experts.Google Scholar
Committee of Experts on Constitutional Review. 2010b. “Final Report of the Committee of Experts on Constitutional Review.” Nairobi, Kenya: Committee of Experts.Google Scholar
Constitution of Kenya Review Act, Act 13 of 1997, as amended by Act 6 of 1998, Act 5 of 2000 and Act 2 of 2001 (Review Act, 1997).Google Scholar
Constitution of Kenya Review Act, Act 9 of 2008, as amended by Act 6 of 2009 and Act 9 of 2009 (Review Act, 2008).Google Scholar
Constitution of Kenya Review Commission. 2002. The People’s Choice: The Report of the Constitution of Kenya Review Commission (Short Version). Nairobi, Kenya.Google Scholar
Constitution of Kenya Review Commission. 2004. The Draft Constitution of Kenya 2004 adopted by the National Constitutional Conference on 15 March 2004 (Bomas Draft). Nairobi, Kenya.Google Scholar
Constitution of Kenya Review Commission. 2005. The Final Report of the Constitution of Kenya Review Commission. Nairobi, Kenya.Google Scholar
Independent Electoral and Boundaries Commission & others v David Ndii & others. 2021. [2021] EKLR.Google Scholar
Kenya National Dialogue and Reconciliation. 2008b. “Longer-term issues and solutions: Constitutional Review,” 4 March 2008.Google Scholar
Mwau v Independent Electoral and Boundaries Commission. 2017. Supreme Court, Nairobi, Presidential Election Petition 2 & 4 of 2017: November 20, 2017.Google Scholar
Ndii & others v Attorney General & others. 2021. [2021] EKLR.Google Scholar
Njoya and others v Attorney-General and others [2004] LLR 4788 (HCK).Google Scholar
Presidential Taskforce on Building Bridges. 2019. To a United Kenya: From a Nation of Blood Ties to a Nation of Ideals; A Report by the Presidential Taskforce on Building Bridges to Unity Advisory. October 2019 Building Bridges. Nairobi, Kenya.Google Scholar
Raila Amolo Odinga v Independent Electoral and Boundaries Commission. 2017. Supreme Court, Nairobi, Presidential Election Petition 1 of 2017: September 20, 2017.Google Scholar
Report of the Committee of Eminent Persons. 2006. Nairobi: Government Printer (Kiplagat Report.)Google Scholar
Report of the Commission of Inquiry into Post-Election Violence. 2008. Nairobi: Government Printer (Waki Report.)Google Scholar
Report of the Independent Review Commission on the General Elections Held in Kenya on 27th December, 2007. 2008. Nairobi: Nairobi: Government Printer (Kriegler Report.)Google Scholar
Steering Committee on the Implementation of the Building Bridges to a United Kenya. 2020. “Report of the Steering Committee on the Implementation of the Building Bridges to a United Kenya Taskforce Report: From a Nation of Blood Ties to a Nation of Ideals.” Nairobi.Google Scholar
Verbatim Report of Proceedings of Plenary Meeting of the Committee of Experts on Constitutional Review held on June 10, 2009 in Delta House, Westlands, Nairobi.Google Scholar

Save book to Kindle

To save this book to your Kindle, first ensure coreplatform@cambridge.org is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about saving to your Kindle.

Note you can select to save to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be saved to your device when it is connected to wi-fi. ‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.

Find out more about the Kindle Personal Document Service.

Available formats
×

Save book to Dropbox

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Dropbox.

Available formats
×

Save book to Google Drive

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.

Available formats
×