Kenya’s New Constitution: a Transforming Document or Less than Meets the Eye?

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The Kenyans endorsed a new Constitution in a referendum on the 4th of August. This Constitution is claimed to be the most important political development since independence from Great Britain in 1963. Since the introduction of the Independence Constitution, which led to the formation of the new State, no comprehensive constitutional reform has taken place. As the Independence Constitution was drafted through negotiations with the colonial power this is the first reform which detaches the Constitution from its colonial origin and puts it on a new basis.

Therefore the new document is a genuine Constitution of the Kenyan people. The reform was long awaited as it comes more than 20 years after the constitutional reform project was first begun. The initiative for the production of the latest draft was the violence and unrest following the 2007 elections. These events, which led to more than 1000 dead and 300 000 internally displaced persons, made the necessity of structural reforms very obvious.

The new Constitution can be appraised as a very modern document, particularly through its Bill of Rights which includes a wide array of socio-economic rights. In this respect, it can be seen from the mere content of the text - alongside the South African Constitution - as one of the most progressive documents on the continent and some provisions in the Bill of Rights develop the South African example even further. However, the text seems in some parts bloated because special protection clauses were repeatedly emphasised. Additionally, as political developments over the last few decades have created one of the most corrupt political systems on the continent, there is considerable doubt whether the political will exists to realise this ambitious text in all aspects. Thus from a more sceptical perspective one could argue that it would have been more valuable to concentrate on those issues, particularly with respect to the protection of rights, which can realistically be realised and make their judicial enforcement as strong as possible. Reading the new State structure, the document contains further transformational potential with the reduction of presidential power and the strengthening of democratic legitimacy. The future will show how far the political elite will go in the implementation process and whether the Constitution can fulfil the high expectations and serve as the country’s turning point towards good governance, democracy, stability and peace.

This Article is structured in two parts. Firstly, to provide an understanding of the background to the new developments, Kenya’s constitutional history is outlined, whilst also commenting on the recent campaign preceding the constitutional referendum (B.). In the main part (C.) the key changes of the extensive new Constitution will be explained with special emphasis on the Bill of Rights. The final part outlining conclusions will return to a critical evaluation and contain some thoughts on the way forward.

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Author

Cornelia Glinz

published

Kenya, February 5, 2011