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2 - Making and Remaking Kenya’s Constitution

Published online by Cambridge University Press:  03 November 2022

By
Christina Murray
Edited by
Tom Ginsburg  and
Sumit Bisarya
Tom Ginsburg
Affiliation:
University of Chicago
Sumit Bisarya
Affiliation:
International Institute for Democracy and Electoral Assistance
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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.

Keywords

Kenyaconstitutionforeign advisorsparliament
Type
Chapter
Information
Constitution Makers on Constitution Making
New Cases
 , pp. 37 - 76
Publisher: Cambridge University Press
Print publication year: 2022

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References

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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. 2008a. Annotated Agenda and Timetable. Nairobi, Kenya. https://peacemaker.un.org/sites/peacemaker.un.org/files/KE_080101_Annotated%20Agenda%20for%20the%20Kenya%20Dialogue%20and%20Reconciliation.pdf.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

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