The 27th of August 2023 marked thirteen years since we, the Kenyan people, gave ourselves a new constitution. One cannot forget the historical hurdles that befell the process. Be it the Yash Pal Ghai-led version, the Wako draft, or the Nzamba Kitonga-led team, the three versions of the document each faced contestation, and had supporters and opposers. At each stage, critical opposition to the draft document centred around themes of power-sharing (devolution), land, boundary demarcations, the role of religion in adjudication (Kadhi’s courts), and more vehemently, women’s bodily autonomy (abortion). Eventually, post the referendum, the final product has become a loved, celebrated and widely quoted document that civil society and religious groups, the courts, parliament and the executive have all found to be a source of inspiration and justification for their actions, or lack thereof.
It has not been all glitz and glamour post-2010, however. There have been several instances where flagrant attempts to mutilate the constitution have been made. The Building Bridges Initiative (BBI) represents the most notorious of these attempts. The failure to implement the two-thirds gender rule is another case in point; this grundnorm has been disrespected despite court orders. The Linda Jamii Constitutional Amendment Bill by the Kenya Christian Professionals Forum is the latest attempt to change the text of certain provisions that do not sit well with the group. Whether these clauses of the constitution are an affront to democracy, the rule of law and the values we espouse as a nation is a debate for another day.
On the flipside, over these thirteen years there have been numerous successful wins thanks to the constitution. Willingly ceding power and implementing devolution was one of the earliest litmus tests for abiding by the katiba. While not yet perfect, we seem to be increasingly getting a grip on the benefits of decentralising power. Today, governors and their county assemblies seem to be much more in sync. Mandates seem clearer. The woes that governors such as Martin Wambora and Kivutha Kibwana faced in the earlier years of power struggles seem to have lessened (without, of course, ignoring Governor Kawira Mwangaza’s rocky start to her leadership in 2022).
Many more wins have perhaps been exhibited in court. Today, we see the utility of Article 2(5) and 2(6) of the Constitution, particularly when the government has violated the international provisions of the treaties that Kenya has ratified. Case in point: Zipporah W. Mathara was a pivotal reminder of the Kenyan government’s duty under the International Convention on Civil and Political Rights – ICCPR. From judicial precedent, accountability is no longer just restricted to the national laws we have passed (or failed to pass) in our parliament; we now hold government to a higher standard.
As a feminist scholar with a bias towards women’s progress, I must point out that the constitution has been generous and creative in bequeathing rights to women. Taking the cue from the katiba, the courts have pronounced themselves on such prominent cases as JMM v the Attorney General (access to safe abortion for rape survivors), LAW v Marura Maternity Hospital (forced and coerced sterilisation of women living with HIV), Josephine Majani v Bungoma District Hospital (disrespect during childbirth), Maimuna Awour vs Pumwani Maternity (detention of women post-childbirth) and Dr Tatu Kamau v Attorney General (Female Genital Mutilation). Through these cases, the courts have given life to Articles 26, 27, 29 and 43 of the katiba. On paper, I dare say, Kenyan women today have layers of safeguards on a broad range of health-related rights.
Beyond women’s reproductive rights, the constitution has also not shied off safeguarding minority rights. Today, the Lesbian, Gay, Bisexual, Trans and Intersex (LGBTQI) community in Kenya celebrates the freedoms protected thanks to Articles 10, 27, 36, 43 and many more. In the words of the Katiba Institute, “The adoption of the Constitution meant that the State cannot pick and choose which types of people are deserving of having their rights respected, protected and fulfilled.” The gains to this community have been reaffirmed under various themes. Audrey Mbugua’s challenge to the Kenya National Examination Council reminded us that any human being had the right to government-issued documentation that bore their desired name in the case where a person had legally changed their name. Equally, in February this year, the Supreme Court was quick to remind us in the precedent-setting case of Eric Gitari v Non-Governmental Organization Co-ordination Board & 4 others that discrimination on grounds of sexual orientation is unconstitutional. Guided by the provisions of the constitution, the court reaffirmed the freedom of association as not being exclusive to certain groups.
“The adoption of the Constitution meant that the State cannot pick and choose which types of people are deserving of having their rights respected, protected and fulfilled.”
Furthermore, March 2018 was another critical date for the LGBTQ community, with the Court of Appeal (Mombasa) testing the right to privacy, dignity and fair hearing in the case of COI & another vs Chief Magistrate’s Court Ukunda. The Court of Appeal’s determination that it was illegal and unconstitutional to obtain and adduce evidence in court through forceful anal testing has been a useful reminder to public health practitioners about the constitution’s safeguards. The intersex community also celebrates the gains derived from the constitution. In 2019, the Taskforce on Policy, Legal, Institutional and Administrative Reforms regarding Intersex Persons in Kenya recommended the suspension of the practice of “corrective surgery” for intersex children. The taskforce also recommended the introduction of a third gender marker on official identity documents. The 2019 National Census thus factored this recommendation in the population headcount and since then there have been incremental gains for the intersex community, with more gender markers – including a third category – aligning with the provisions against non-discrimination provided by Article 27.
Other groups that have tested the range of our constitutional freedoms include Team Maandamano who greatly benefited from Article 37’s guarantee of the right to assemble and picket. Until recently, numerous groups would often easily obtain police permits to hold walks, protest deaths within their communities, demand for action, etc. Religious groups in all their diversity have also continued to enjoy the protections of Article 32 (while also continuing to enjoy tax exemptions in an extremely hostile economic environment). Our freedom of worship as Christians, Muslims, Hindus… – and even the protection of atheists – is guaranteed. The width and breadth of the right to a fair hearing has also been tested by a wide variety of beneficiaries; be it arrested suspects, members of parliament, students dismissed from educational institutions, many Kenyans have made applications to the courts under Article 50 of the Katiba and received reprieve.
By no means is our katiba perfect. There is evidence of its abuse, with politicians most notorious for disrespectfully disregarding Chapter Six on the ethical standards demanded of public officials. On both sides of the political divide, there have been several instances where politicians have shown that they may not be 100 per cent committed to the implementation of the constitution. Both factions have in the past (and also currently) been involved in subverting the constitution and, going forward, this is a fundamental question that Kenyans must address. Many other clauses – particularly those not favouring incumbents, such as term limits – have come under fire. These hiccups are, however, minor and do not warrant any sudden attempts to mutilate the document by inviting Constitutional Amendment Bills. As argued by Jill Ghai, those who may want to change the constitution want to do so because they do not desire change. Proposals to amend the katiba must, therefore, be scrutinised with great care. Jill’s remarks are reinforced by Miguna Miguna who has in the past argued that “there is nothing wrong with the Constitution. No defect. No errors. Nothing that requires amendments or mutilations. The Constitution of Kenya requires honest and consistent implementation, application and respect. Period!”
The government, the Church, and civil society organisations all have a duty to breathe life into the document, test its range in the courts and find creative, legal solutions to address any lacunas. Thirteen years later, any ideas of wantonly amending this grundnorm must be zealously discouraged.
