Katiba Institute - National Values and Principles of The Constitution PDF

National Values
and Principles of
the Constitution
Yash Pal Ghai and Jill Cottrell Ghai
Editors
Katiba Institute
Nairobi
National Values And Principles

of the Constitution
Copyright Katiba Institute, Nairobi
Year of publication 2015
The production of this book has been possible thanks to the support
of the Canadian High Commission and The Star newspaper.
Cover design & Layout by John Agutu

Email: agutujo@yahoo.com
Printed by Colourprint Ltd., P.O. Box 44466 00100 GPO Nairobi
Contents
Preface............................................................................................ v
The Authors................................................................................... vii
About this book............................................................................. xi
1. National Values and Principles:
Roots of Constitutionalism
Yash Pal Ghai....................................................................... 1
2. National Identity and Respect for
Diversity: Foundations of the State
Yash Pal Ghai....................................................................... 8
3. Patriotism
Chris Kerkering..................................................................... 14
4. Constitution and Culture: Being a Kenyan
Mshai Mwangola................................................................... 20
5. Secularism and Religion
Gabriel Dolan....................................................................... 25
6. Democracy: The primary constitutional value
Yash Pal Ghai....................................................................... 32
7. Public Participation: Engaging Citizens in
Policy Making
Grace Wakesho Maingi......................................................... 39
8. Separation of Powers, Checks and Balances,
and the Rule of Law
Yash Pal Ghai....................................................................... 44
iv
National Values and Principles Under the Constitution
9. The Trial of Integrity in Kenya

PLO Lumumba.................................................................... 49
10. Equality and Equity: Key Constitutional Values
Heidi Evelyn......................................................................... 55
11. The Missing Link: Challenges in
Legislative Accountability in Kenya
Wanjiru Gikonyo................................................................... 62
12. The Values of Money
Jason Lakin........................................................................... 69
13. Human rights: Foundations of Kenyas Constitution
Catherine Mumma................................................................. 78
14. Human dignity: Underlying basis of human rights:
Part I
Yash Pal Ghai....................................................................... 84
15. Judicial interpretations of the right to human dignity:
Part II
Yash Pal Ghai....................................................................... 89
16. Sustainable Development the Environment,
the Future and the Vision

Waikwa Wanyoike................................................................ 95
Preface
ost of the articles in this book were originally published in the Star newspaper, as part of their Katiba
Corner series in the Siasa section on Saturdays.
Katiba Institute felt that it would be useful to the people of

Kenya if these articles could be more widely available. There is a
lot of interest in the Constitution, but not everyone has access to
a copy of it, and, even if as laws go it is clearly written, it is not
very easy reading. We hope that people will find these articles are an
approachable way to understand some aspects of the Constitution.
We anticipate that civil society organisations may also find
them useful, and for them and for readers more generally we
have included a few things to think about after each chapter.
At about the same time, we are hoping to publish two other
series of Katiba Corner articles: one on devolution and the other
on minorities and the Constitution. We are also planning to have
these series translated into Kiswahili, to make them even more
readily available.
Katiba Institute is most grateful to the Star for creating the
Katiba Corner possibility, to all the authors, and to the Canadian
High Commission in Nairobi for funding the publication of two
of these books, including this one.
Finally we are grateful to Kenyas great cartoonists, Gado
and Vic for allowing us to liven up this publication with their
cartoons.
Yash Pal Ghai, Jill Cottrell Ghai and Waikwa Wanyoike,
Directors, Katiba Institute
March 2015
The Authors
Note: many of the authors are members/employees/directors of organisations. The views they have expressed in these articles are their
own and not necessarily those of their organisations.
Gabriel Dolan is an Irish Catholic Priest who has spent the past 33
years living in Kenya. He has tried to serve the people and justice in
Turkana, Kitale and currently in Mombasa. He directs a local human
rights organisation called Haki Yetu that deals with matters of land,
eviction, cohesion, GBV and governance. He is a board member of
Katiba Institute, KHRC, IMLU and Muhuri. He also does a weekly
column in the Saturday Nation. His commitment to justice is inspired
by his religious belief but regrets that most of what passes as religious
practise in Kenya has little to say about the transformation of society.
Heidi Evelyn is a member of the Law Society of Upper Canada and
has many years of experience working as Tribunal Counsel at an Appeals Tribunal in Ontario, Canada. A citizen of Kenya and Canada,
Heidi has taken a keen interest in Kenyas new constitution, especially
matters relating to the administration of justice and equality rights.
Heidi has worked on a number of legal writing and advisory projects
in Kenya including consultancy work sponsored by the Commission
for the Implementation of the Constitution. She is currently a Business Development Consultant with a leading law firm in Kenya.
Jill Cottrell Ghai holds degrees from the University of London and
Yale University and was for forty years a university law teacher, teaching economic social and cultural rights in her last few years. Now she
is a Director of the Katiba Institute and spends much of her time re-
viii
searching for cases and other publications, writing, and being involved
in the Institutes programmes for lawyers, judges and civil society, as
well as commenting on draft legislation.
Yash Pal Ghai is a director of the Katiba Institute and was chair of
the Constitution of Kenya Review Commission and of the National
Constitutional Conference which adopted the Bomas constitutional
draft. He has been member of or advisor to many other constitution
making processes, in Africa, Asia and the Pacific. He holds degrees
from Oxford and Harvard universities including the higher doctorate
(Doctor of Civil Law). He was a university teacher of law from 1963
till 2006, holding posts at universities in East Africa, Sweden, England
and Hong Kong. He is the author or editor of some 20 books and
nearly 200 articles and chapters in books and academic journals.
Wanjiru Gikonyo is the National Coordinator, and a founder of
The Institute for Social Accountability (TISA). She also works as a
consultant in local governance and the design of social accountability
tools/programmes. She is the author of the CDF Social Audit Handbook, and has published numerous papers on decentralized governance. Under her stewardship The Institute for Social Accountability
has established itself as a leading institution in devolved governance,
building capacity and providing governance solutions in the sector.
TISA is widely regarded and is working closely with numerous official
institutions in the implementation of devolution in Kenya. Wanjiru
has a degree in Business Organisation from Herriot-Watt University,
Edinburgh, Scotland and is in the final stages of her Masters of Arts
in Rural Sociology and Community Development at the University of
Nairobi.
Chris Kerkering is an attorney licensed to practice in the United
States. He received a Bachelor of Arts from Columbia University in
1995 and a Juris Doctorate from Harvard Law School in 2001. Mr.
Authors
ix
Kerkering currently lives in Nairobi where he works on issues relating

to rule of law, rights to fair trial, and criminal and civil reforms in both
Kenya and Somalia.
Jason Lakin is the Country Manager for the International Budget
Partnership Kenya. He has worked with IBP for the last six years,
where he spends his time encouraging greater transparency and public
participation in public finance at national and county level in Kenya.
He is also a regular columnist for The East African and the co-author of The Democratic Century with the late Seymour Martin Lipset.
He holds a Ph.D. in political science and social policy from Harvard
University.
PLO Lumumba is currently the Director and Chief Executive Officer of the Kenya School of Law. He is a former Secretary of the
Constitution of Kenya Review Commission and former Director of
the defunct Kenya Anti-Corruption Commission. He is well-known
as an author and orator as well as a legal scholar. He has also practised as an advocate for many years and is counted among the leading
practitioners.
Grace Wakesho Maingi is Executive Director of Uraia, which has
the mission of facilitating the provision of quality civic education and
practical mechanisms for citizen engagement in public affairs. She is
a human rights lawyer with over thirteen years work experience at
the national, regional and international level in key non-governmental
organizations in Kenya. She has wide experience in womens rights,
access to justice, public interest litigation, civic education and transitional justice issues.
Catherine Mumma is a human rights lawyer, and a Commissioner
of the Commission for the Implementation of the Constitution. She
holds degrees from the Universities of Nairobi and London, and is
an advocate of the High Court of Kenya. She has worked in the public service (the State Law Office) and was one of the pioneer Commissioners of the Kenya National Commission on Human Rights
(KNCHR), and also a Commissioner on the Independent Review
Commission (IREC) which was appointed to look into the electoral
issues that affected the 2007 general election. Ms Mumma also has
experience in the civil society sector where she has worked in 42 communities with vulnerable populations and marginalized populations.
Mshai Mwangola holds a doctorate in Performance Studies from
Northwestern University (USA), a Masters of Creative Arts from
the University of Melbourne (Australia) and a Bachelor of Education from Kenyatta University (Kenya). An oraturist directing and
performing in theatre and storytelling as her genres of choice, she
has also taught and researched different aspects of culture, arts, theatre and performance for three decades. Mwangola chairs the Board
of Trustees of Uraia Trust (Kenyas National Civic Education Programme). She is currently completing her sixth and final year as a
member of the Kenya Cultural Centre Governing Council, four years
of which she served as the Chairperson.
Waikwa Wanyoike is Executive Director of the Katiba Institute. He
appears regularly at the High Court and the Supreme Court of Kenya
on ground-breaking constitutional matters. Previously, he practiced
law in Toronto, with an emphasis on criminal, immigration and refugee law, human rights and constitutional law. He also taught advocacy
at the Osgoode Hall Law School of York University, Canada. Waikwa
was educated at Kenyatta University in Nairobi, Kenya, York University in Toronto, Canada. He received his law degree from Queen`s
University in Kingston, Canada. He is called to the bar in Ontario and
is a member of the Law Society of Upper Canada.
About this book
his is a book designed to be thought about and discussed. We hope that Kenyans and others who are
interested will read it, share it and talk about it. We
believe that the Constitution is a tool to be used by the people.
That is why the motto of Katiba Institute is Constitution as an
Instrument for Change. Of course, it is important that the national government, including the President and the Cabinet, Parliament and the courts, and the county governments, as well as
the independent commissions (like the Independent Elections
and Boundaries Commission and the Kenya National Commission on Human Rights, for example) all take seriously their roles
and responsibilities under the Constitution.
Kenyans adopted a new Constitution in 2010 because they
wanted change. But real change will come only if the people demand it. The Constitution has empowered the people to take responsibility for their own welfare and the respect for and implementation of the Constitution. Their sovereignty is expressed
most clearly in that they elect the President, members of Parliament, Governors and MCAsand have the right to dismiss
them if they fail in their duties (except for the President whose
dismissal is a matter for Parliament). People, either individually
or collectively, can hold civil servants unaccountable, ask the
government for information previously held secret, initiate proposals for policies and laws, and participate in the making of
laws and other government decisions. The Constitution has also
recognised and protects the rights and freedoms of individuals
and communities.
xii
The people will be more able to exercise their authority and

these powers and protect and exercise their rights and freedoms
if they understand what the Constitution says about the responsibilities of public officers and of the people themselves and the
ways in which they can exercise their authority.
Yet the Constitution, even if it is clearer than many constitutions, is not a very easy read. The authors of this book have
all tried hard to make what they have written both accurate and
readable. And they have tried to relate the Constitution to the
real issues for Kenyans.
So, back to how we hope you will use it. A book that is
about ideas and that is what this book is will often be more
meaningful if the readers discuss it with others. And to make it
easier for people to relate to their own lives, and to the realities
of Kenya, we have followed each piece with a few questions to
think about.
The Editors
1
National Values and Principles:
Roots of Constitutionalism
Yash Pal Ghai
here is hardly any constitution in the world that places

as much emphasis on national values and principles as
Kenyas 2010 Constitution. Why? Until recently constitutions (except in communist states which paid lip service to
values but had no intention to observe them) were concerned
largely with institutions of the state, vesting them with powers.
For the most part, the constitution did not specify how these
powers would be exercised, although, with the introduction of
Bills of Rights, some limits were imposed on the exercise of the
powers as was some responsibility for the protection of these
rights. The rights were somewhat limited, judged by contemporary standards. Although many early constitutions emphasised
the authority to rule and to subjugate minorities or groups newly
conquered, gradually as the state stabilised, common social and
moral values emerged, knitting the country together.
Kenyas Constitution
Kenya adopted a new Constitution in 2010. This was the end
of a process that began in the 1990s. In 2000 the Constitution of Kenya Review Commission (CKRC) was set up. It collected views from the people of Kenya and prepared a draft
Constitution in 2002. This was considered by the National
Constitutional Conference (meeting at the Bomas of Kenya)

from 2003-4, and a revised version was adopted by that conference. The government of the day did not like some features
of the draft, and they took over the process, produced a draft
that they preferred (although many of the provisions were the
same). But the government draft was defeated in a referendum in 2005.
Nothing happened for a while, but after the post-election
violence of 2007-8 there was a feeling that a new constitution
might improve the chances of a more peaceful Kenya in
future. In 2009, the government appointed the Committee of
Experts (CoE) to review the previous draft constitutions and
produce a new, harmonised draft. Eventually, after public
debate, revision, consideration and some changes by MPs, the
people of Kenya adopted the new Constitution, and it came
into force on August 27 2010.
In many newer states, including Kenya, created by colonialism or internal conquests, out of widely differing peoples,
there may be several, often conflicting systems of values, and
the primary loyalties have often been communal rather than national. This has created a number of problems, including that
the people do not identify with the state or share in its political and moral mandateand therefore see it is a fair target for
plunder and theft. It also means that we are so pre-occupied by
own community however we define it, that we do not reach
out to members of other communities. Experience shows that
it is very difficult to run a country if there are competing loyalties, and a weak sense of commitment to the common cause and
values. Those who take control of the state are tempted to use
it to further their personal or tribal interests, marginalising oth-
National Values and Principles: Roots of Constitutionalism
ers. Among the people there is little commitment or obedience

to state laws or proceduresand the state relies increasingly on
coercion rather than persuasion.
The Constitution of Kenya Review Commission (CKRC)
was confronted with the situation described above. There
seemed to be a total breakdown of moral values and standards,
typified by great degree of corruption and the use of coercion
by the state, the suppression of human and community rights.
Kenya seemed divided by ethnic affiliations, lacking a feeling
of common identity and shared destiny. There was widespread
economic and social discrimination against some communitiesand little respect for their cultures and life styles. There
was massive assault on the environment (typified by the cutting
down of thousands of trees to produce charcoal for export to
Saudi Arabia). Many individuals and communities lost their land,
to land grabbers who included the highest state office-holders
and their friends. Huge disparities of wealth and opportunity
had emerged, in communities which traditional were largely
egalitarian. There was no respect for the lawthe presidents
word and commands effectively replaced the law, and the judiciary was bought over or intimated to serve the interests of the
state and the powerful. Democracy could not survive in these
conditions, and even though, by the time of the CKRC, several
elements of democracy had been revived, many critical aspects
were absentand most importantly, the lack of accountability
of the government, in the midst of ethnic voting and politics.
A majority of the CKRC considered that the agenda of
fundamental reform of the state and promotion of national
unity would not be achieved merely by some tinkering with state
institutions. Conditions for true democracy needed to be establisheddemocracy in which people were able to participate in
public affairs on a continuous basis, not periodically through

rigged elections marked by bribes and ethnic loyalties. Some saw
the constitution as a device to promote national values which
would overcome the conditions which had in the first place led
to the agitation for reform. The CKRC reviewed values necessary to deal with the shortcomings that I have outlined above,
and gave a central place to these values in the scheme of the
constitution. A critical role of values and principles is to bind
state institutions as to the manner of the exercise of their powers, sometimes to restrain the state, and often to use their powers to achieve goals of the values (such as social and economic
rights of the people, or the functioning of devolution).
National values are foreshadowed in the preamble: pride
in diversity and commitment to national unity, respectful of the
environment, nurturing the well-being of the individual, family,
community, and nation, and government based on essential values of human rights, equality, freedom, democracy, social justice
and the rule of law. Article 10 makes values and principles binding on all state institutions and all persons (that means everyone, including, if relevant, private citizens and companies) when
applying or interpreting the constitution or making laws and
policies under the constitution. It then sets out the values: (a)
patriotism, national unity, sharing and devolution of power, the
rule of law, democracy and participation of the people; (b) human dignity, equity, social justice, inclusiveness, equality, human
rights, non-discrimination and protection of the marginalised;
(c) good governance, integrity, transparency, integrity, transparency and accountability; and (d) sustainable development.
These values are reiterated throughout the constitution, to
indicate how they are to be achieved. For most state institutions
the constitution sets out their precise purposes and responsi-
bilities. For example, it explains the principles of the electoral

system (universal suffrage, free and fair elections, conducted
by an independent commission, transparency and fair administration, ensuring gender fairness, fair representation of persons with disability). It regulates the nature of political parties
to eliminate the ethnic factor, promote nationwide parties, and
requires the practice of democracy and integrity within parties
and their accountability. It defines the role of parliament, and
therefore of parliamentarians (they must protect the constitution and promote the democratic governance of Kenya, ensure
that laws necessary to implement national values are passed and
implemented, conduct business in an open manner with public access to their proceedings, and facilitate public participation
and involvement in the their legislative and other business).
The president is told at considerable length what his or her
duties and obligations are (respect, uphold and safeguard the
constitution, promote and enhance the unity of the nation, promote and respect for the diversity of the people and communities, and ensure the protection of human rights and fundamental freedoms and the rule of law). All executive authority must
be exercise in a manner compatible with the principle of service
to the people and for their well-being and benefit. State officers
responsible for law (particularly the AG and the DPP) must promote, protect and uphold the rule of law and defend the public
interest. Security forces are reminded that national security must
be pursued in accordance with the law and with utmost respect
for the rule of law, democracy, human rights and fundamental
freedoms. The constitution insists that a state officer has the
responsibility to serve the people, rather than the power to rule
them. State officers must serve the people honestly, and avoid
situations of conflict of interest. Appointment to state service
must be made on the basis of personal integrity, competence

and suitability, impartial decision making ruling out nepotism,
favouritism, or other improper or corrupt practices.
The objectives of devolution are set out at considerable
length. Devolution must be organised to promote democratic
and accountable exercise of state power and the separation of
powers, foster national unity, and self-government at lower levels, protect and promote the interest and rights of minorities
and marginalised communities, and ensure equitable sharing of
national and local resources throughout the country.
Judges are told that justice must be done to all, whatever
their status, it must not be delayed and should be administered
without undue regard to procedural technicalities. The judiciary
is given the formidable task of custodian of the constitution,
and given directions as to how it must interpret and apply it
(promoting values of an open and democratic society based on
human dignity, equality, equity and freedom, the rule of law
and constitutional purposes, values and principles). Independent commissions must protect the sovereignty of the people,
secure the observance by all state organs of democratic values
and principles, and promote constitutionalism.
These principles and purposes also help the people to assess the performance of institutions, and to demand accountability. They form the basis of liability for misconduct, and
disqualifications from holding public office. And the violation
of these values and principles constitute the grounds on which
voters in a constituency may dismiss their members of parliament or county assembly. Among the reasons for the removal
of the president through impeachment is gross violation of
this Constitution or of any other law. And hopefully, in future
elections people will cast their votes after considering how far
the candidates have respected, observed and promoted national
values and principlesand thus demonstrated their commitment to the constitution.
Things to think about
Those who read this article must wonder how far state and
other authorities have paid any attention to these values and
principles. In the next few chapters, members of Katiba Institute and others will explore these questions in the context
of particular values and principles.
Are the president, parliamentarians, county officials, judges,
the police and military and other public servants any different from those in the days of Jomo Kenyatta, Moi and
Kibaki?
Is the level of corruption any less?
Have we managed to get rid of ethnicity as a factor in public
life?
Are the disparities between the rich and the poor any less?
You might like to think about the idea of values: what are
your own personal values? Do they differ from those in the
Constitution or do you find that you are in sympathy with
the constitutional values? How do you think that people in
public life, and indeed citizens, ought to live so that the vales
are respected?
2
National Identity and Respect for
Diversity: Foundations of the State
Yash Pal Ghai
major problem facing Kenyas constitution makers was

the ethnicisation of politics and the capture and exploitation of the state by a tribe at the exclusion of
other ethnic groups. Peoples primary identity was tribal or racial. However, conflicting cultural values is no longer a general
problem in Kenya; the market economy has seen to that. The
problem now is conflicting economic interests. Though aspira-
National Identity and Respect for Diversity: Foundations of the State
tions of Kenyans are broadly similar, their identities and loyalties differ. Tribal loyalty overrides loyalty to Kenya. Given scarce
resources, competition for them takes ethnic form. Towards the
end of colonial rule (when the main beneficiaries of the state
were British commercial interests and white settlers), economic
development was uneven even among Africans, so that some
ethnic groups acquired better education, skills and opportunities, producing differentiation in both wealth and status among
them.
On independence, groups better placed during colonial
rule had easier access to the state. Exploiting the state and its
resources became even an greater force in producing inequality between groups than during colonial rule. The major prize
of politics became the capture of the state through the executive presidency. The mobilisation of ethnic support became the
principal mode of capturing state power. Politics took an intensely ethnic hue, leading to the exclusion of most other ethnic
groups from the state and its resources (elections were regularly
marked by state violence organised by the ruling group against
competitors communities). Kenyans paid a heavy price for such
politics: corruption, theft of state resources, illegal use of armed
forces, bureaucratic inefficiencies, deepening the gap between
the new rich and the poor, decline in services, assassinations,
suppression of human and community rights, impunity and the
destruction of the rule of law. It led to great bitterness between
ethnic communities, preventing the emergence of a Kenyan
identity and sense of nationhood. Another consequence of the
obsession with ethnicity was that it hid a fundamental aspect of
post-independence development: the formation of a new class,
the Kenyan bourgeoisie, whose members shared common interests, including the exploitation of the state and people.
10
Way to unity
The challenge of making a new constitution was therefore
to promote a sense of Kenyan identity, transcending or rising
above particular identities, especially ethnic identities, and promoting national unity and political integration, and to restructure the state accordingly. A common identity and unity would
be superficial and fragile if it did not also acknowledge the diversity of the people based on tribe, race, language, religion or
lifestyles. There is a third element in achieving common identity
and unitysocial justice. Both colonial and post-colonial governments had appropriated the resources of some communities
and marginalised them. Some communities were ostracised by
the government and some were shown scant respect for their
lifestyle. The primary challenge was therefore the choices that
would ensure the fair balancing of these three objectives. The
implications of this were wide ranging, affecting most aspects
of the constitution, starting from values and principles, and covering divisions and allocations of power (horizontally and vertically), institutions and procedures.
In a multi-ethnic state, each community should feel, or be
made to feel, that it is part of the wider nation and be accepted
as such. It should be able to practise its culture, including religion and languageand have proficiency in the national language. All citizens should enjoy equal rights and equal opportunities. All communities should be included in state institutions
and other spheres of life. Past injustices must be redeemed.
Values as national ideology
Chapter 1 discussed at length national values as the basis of
public policies and conduct to bind the nation together. These
values are reiterated throughout the constitution to specify how
National Identity and Respect for Diversity: Foundations of the State
11
they govern the mandate and conduct of different institutions

(like the presidents obligation to promote and enhance national
unity and respect for regional and ethnic diversity) and determine procedures (such as participation).
Citizenship
The implications of citizenship are both symbolic (of citizens constituting a distinct community strongly bound together)
and substantive (equal rights and participation). The old laws
were discriminatory in law and practice. The new laws are based
on the inclusion of Kenyas various communities who have hitherto been excluded from public life and benefits. It is clear that
the constitution has given these communities a sense of security,
belonging and identity.
Human rights
This is the subject of another article but here I want to
draw attention to the ways in which the Bill of Rights balances
the interests of individuals and communities, of common identity and particular cultures, of the freedom of speech and the
protection of community against hate speech and incitement,
equal opportunities and amelioration of past injustices and affirmative action, the neutrality of the state vis a vis religious
communities with a strong protection of the freedom of religion, and Swahili and English as official languages (to promote
nationwide communication) with a strong commitment to the
preservation and development of indigenous languages and
cultures. Respect for diversity of cultures (discussed by Mshai
Mwangola) is manifested in a number of ways, strikingly in the
concern for the preservation of special lifestyles of communities, particularly pastoral and forest communities. And there are
12
many provisions for the protection of minorities and bringing

them into the mainstream of national life.
Representation and Inclusion
The balancing of the national and the communities interests is also clear from the electoral system. Parliament is
described as manifesting the diversity of the nation and the
president as the symbol of national unity, thus defining their
mandates. Public services must ensure that their staff represent
the diversity of Kenyans, drawn fairly and proportionality from
all communities. Minorities, including for this purpose women,
are guaranteed representation in national and county assemblies.
Political parties must reflect national diversity in its membership
and leadership, uphold national unity and cannot be based on
religion, race, sex or region.
Power sharing
A major reason why Kenyans became so fragmented, ironically, was the extreme centralisation of power by Jomo Kenyatta
and Moiand the effective exclusion of all but their own tribal
communities from any share in the powers and resources of
the state. Devolution represents a major reversal of that policy,
distributing power throughout the country, in areas previously
neglected and sometimes ostracised. Devolution can be very
powerful in the political integration of the country provided its
objectives and ethos as defined in the constitution are respectedand the mechanisms for co-operation and co-ordination
are respected and used.
Preface
13
Conclusion
Unity and diversity are both critical to Kenyas future. Diversity is not only in the interests of smaller communities and
other minorities. It is for the enrichment of all the people in a
multitude of wayscultural, intellectual, history, economy, even
cuisine A constitution cannot merely by its promulgation achieve
its objectives. It is the people, and particularly governments and
assemblies, political parties, civil society, and business and trade
union organisations who must take the responsibility for its
implementation consistent with its values. So far governments
and political parties have not abided by the constitutionand
their acts have been counter to its values. National effort, much
greater than went into drafting the constitution, is needed for its
implementation.
How many ways might you, personally, finish the following
sentence: I am a?
Would you say that each one represents an identity?
How important to you is the statement I am a Kenyan?
In what ways do you want your country to recognise your
other identities?
How would you say your life is enriched by the fact that in
Kenya there are people with many different identities?
In what ways do you as an individual recognise the diversity
of Kenya, and the various identities of your fellow Kenyans?
What role is played by ethnic affiliation in national and
county politics? Is it good or bad for the country? If you
think its influence is bad, how can we work to eradicate it?
3
Patriotism
Chris Kerkering
he eighteenth century essayist Samuel Johnson famously

said, patriotism is the last refuge of a scoundrel. And,
indeed, history is full of people who have invoked patriotism to serve their own ends rather than those of their country.
One persons patriotism may be anothers treachery, and we have
no test that can sufficiently determine when patriotism turns
into virulent nationalism. If patriotism proves so elusive or
even worse dangerous if misused and misapplied, then why is
Patriotism
15
it incorporated into the National Values and Principles of Governance under Article 10?
One answer is obvious. Those who are caretakers of the
country and the constitution must be guided by love of Kenya
and devotion to Kenyans. Too many of Kenyas state and public
officers have failed to make Kenya and Kenyans the primary
beneficiaries of their civil service. One reason Kenyans demanded constitutional reform was precisely to ensure that its leaders
place the country and its citizens over their own interests. For
those entrusted with state power, patriotism demands sacrifice,
and requires leaders who will subordinate their self-interest to
the countrys interests. Patriots dont take from the government
coffers, dont enrich themselves at the cost of their constituents,
dont conduct their affairs under a veil of secrecy, and dont use
coercion to silence dissent. In short, patriots dont undermine
the values and principles of good governance in the name of
creating good governance.
Patriotism is a national political value that runs through
nearly all the Constitution. It includes the obligation under Article 73 that State officers bring honour and dignity to the nation
and promote public confidence in the integrity of the State offices. We see it in Article 91, which requires that political parties
be advocates for Kenya and act in the best interests of Kenyans, not for special interests or for the benefit of its members.
Parliamentarians, members of the executive, and members of
devolved government must also comply with the requirement
that Kenya and Kenyans come first. The robust protection of
broader socio-economic and environmental rights ensures that
government officials do not use Kenyas most precious resources the peoples own hard work and the diverse environment
for their own ends.
16
A second, equally powerful, reason relates to the countrys

long-standing ethnic divisions. Ethnic conflict predates independence and, regardless of how it began or who is to blame,
has lasted far longer than it ever should. Some argue that this is
a country inevitably divided along ethnic lines. Although those
claims oversimplify the complex interplay between ethnicity,
class, land, and other unresolved historical injustices, there is an
undeniable truth to them. The patriotic ideal calls upon all Kenyans to rise above these divisions and stand together as Kenyans, not just as members of a specific community. Patriotism
demands that people act for the good of the country with the
understanding and expectation that what benefits Kenya benefits all of its communities. To that end the Constitution requires
diverse governing bodies that include the voices of all ethnic
communities. It calls on the people and the government to address some of the injustice such as improper land acquisition
and distribution of resources that have fed some of the ethnic
biases
Third, the Constitutional value of patriotism recognizes
the threat of unchecked government power. That is why fair
trial and freedom from cruel, inhuman and degrading treatment
are identified as non-derogable rights ones that can never be
limited. On this, the Constitution is explicitly clear: patriotism
never justifies unlawful detention, torture, extra-judicial killings,
or other violations of fundamental human dignity. These rights
are inherent in all human beings. The Kenyan government, in
turn, must guard against the dilution of these rights. Any claim
to the contrary stands starkly opposite to the very notion of
patriotism. Patriots rise above the belief that such violations are
necessary no matter how compelling the circumstance.
Patriotism
17
It may be tempting to think that the Constitution establishes a new patriotism for a new Kenya: that the country must
move on from past injustices and denounce ethnic division and
political corruption as relics of the past. Yet moving on without undergoing rigorous self-reflection is both unrealistic and
inadvisable. We can see the various commissions set up by the
Constitution in that perspective: commissions are to investigate
historical land injustices, ensure equitable allocation of state revenue, determine fair salaries for public officers, and ensure that
the national police and other civil servants comply with fundamental standards of human rights, prevent corruption, and promote accountability. These constitutional provisions look both
forward and backward. They recognize that Kenyans must understand and learn from past injustices in all of their complexity
before they can create a more equitable and just country. The
national value of patriotism demands that all Kenyans undergo
this rigorous self-reflection.
But we are still left wondering how to distinguish the patriot from the scoundrel or a strong sense of national pride from
aggressive nationalism. Any claim to patriotism must be judged
in context, and the constitution provides that context. Patriotism is just one of the fundamental values in the Constitution.
Although patriotism is listed first, that does not place it at the
top of some hierarchy. Patriotism does not stand alone, but must
be judged in terms of its fidelity to the other national values set
out in Article 10 and discussed in this series, including: national
unity, democracy and participation, human dignity, equity, social
justice, inclusiveness, protection of the marginalised, good governance, integrity, transparency, and accountability.
The Chief Justice has noted that patriotism does not mean
putting country above justice, and Kenyans must be especially
18
alert to the kind of patriotism that justifies subverting other national values in the name of love of country. The Constitution,
in itself, is an act of patriotism, and Kenyans must view any derogation from its principles and values with great scepticism. As
the first words of the Constitution declare: all sovereign power
belongs to the people of Kenya and shall be exercised only in
accordance with this Constitution. It is the people who determine how that power should be exercised. They cannot rely on
the patriotism of others. Kenyans must be their own patriots,
measure their own conduct by the extent to which they adhere
to those values in Article 10, and demand that others do the
same. Because Kenyan citizens are expected to be the patriots
the Constitution envisions, they must constantly compare their
actions to that mandate, with the common goal of bettering the
lives of one and all. The Constitution demands that the term
nyayo be understood in a different way: state organs must follow
in the peoples footsteps, not the other way around. Kenyans must
be aware of the past, but not bound by it; unified, but respecting
diversity. Kenyans must establish integrity and justice as cultural
norms and speak out when those norms are violated.
We all have the potential to be patriots or scoundrels and
the fate of a country largely depends on the decisions its people
make. No matter how trying the circumstances, patriotism demands that Kenyans, as a nation, stay true to the values set out in
Article 10 and use them not fear, hatred, power, or greed as
their guide. The Constitution demands no less.
Patriotism

The National Anthem says: Let all with one accord In
common bond united, Build this our nation together.
How do you feel when you sing the National Anthem?
What do you feel most unites Kenyans (it would be good if
you can identify several different things)?
Can you think of examples of people in Kenya misusing
their patriotism?
How can patriotism be combined with feeling part of the
East African Community, or with feeling pride in being
African?
The Chief Justice, Willy Mutunga, believes that as a judge it
is his duty to produce jurisprudence (that is decisions about
the law) that is patriotic, as well as transformative. In
your own work or life, what does being patriotic mean?
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4
Constitution and Culture:
Being a Kenyan
Mshai Mwangola
s part of the second liberation therefore, there has

been an increasing recognition and appreciation
of African culture in constitutional and national
reconstruction. This nonetheless still requires radical change
in peoples brainwashed minds and perceptions as to the true
meaning of culture. (Constitution of Kenya Review Commission (CKRC))
Does Kenya have a national culture? What is its relevance
to the Kenyan constitution?
On Saturday 20th September 2014, I moderated a panel
discussion at this years Storymoja Festival. Our discussion departed from the conclusions in a recently launched book questioning the wisdom of entrenching culture as has been done in
the 2010 constitution. It became increasingly evident to me, as
the discussion proceeded, that much of the dis-ease with the
current constitutional position on culture stems from differing
understandings of what constitutes culture.
The CKRC pointed out in 2003, in the report of its Technical Committee on Culture, that constitutions all over the world
fall into three categories when it comes to their approaches to
culture. There are those that consider culture as a retrogressive
phenomenon, those that affirm culture as an important aspect
Constitution and Culture: Being a Kenyan
21
of national life, and those that understand culture as being inextricably linked to science and technology. The 1963 Kenyan
Constitution fell into the first category. A creation of the colonial era, as the CKRC noted, it was under-girded by
a deep-seated attitude that African cultures by their very nature are
backward, immoral and repugnant to justice unless proven otherwise. The Constitutions perception is that African cultures significantly contribute to attitudes of polarization and inter-tribal (ethnic) conflicts instead of playing the role of unifying, edifying and
addressing petty antagonisms. [T]he Constitution therefore takes
an approach that seeks to subvert and curtail the African cultures
and to that extent even their positive value may after all be questionable.
Hence, in the half-century that followed independence, it

became all too easy to blame most of Kenyas biggest challenges
on culture, more precisely the backward traditions of African
culture. This fossilised remnant from the colonial era remained
obdurately chained to the past, seemingly impervious to any
possibility of evolution and expansion beyond the parameters
frozen in time by anthropological reports. The destructive consequences of what one might call tribalism such as political
clashes and nepotism in government institutions, human rights
abuses such as female genital mutilation, even scourges such as
corruption and larceny were all blamed on (African) culture,
even as Western culture was held up as the ideal to aspire to. No
wonder then, that some of the most adamant opposition to the
entrenchment of culture in the constitution comes from those
who are also the most ardent at fighting these ills.
The limiting understanding of culture bequeathed us by the
colonial state permeated far beyond its use of customary law to
govern natives who were thus inextricably tied to tribes. It cre-
22
ated a mind-set that froze culture in the race/ethnicity moulds

cast in the colonial past, and created a tug-of-war between the
nation and the diversity of communities of belonging whenever it came to questions of identity. Colonial-era hierarchy had
privileged some identities racial, religious, social above others, making law to benefit the favoured. This elite defined the
constitutional norm; the Others were marginalised on the
grounds of their identity, their culture. Hence the nagging questions that bother Kenyans persist into the second half-century
of independence: Am I Kenyan before all else? What does it
truly mean to say Kenya Kwanza?
The delegates who gathered for the Bomas constitutional
conference embraced the making of a new national covenant
as an opportunity to settle such questions. They abandoned the
first mind-set discussed above, and chose in its place the most
progressive of the three approaches: to affirm culture, which
they defined as the cumulative civilisation of the Kenyan peoples, as the very foundation of the nation. So important was this
this epistemological shift that they added a chapter on Culture
to the Bomas Draft to clearly articulate it, with a framework
providing for both a national culture and a diversity of cultures
within the nation. This enlightened approach was however subverted by the Committee of Experts (CoE), which totally ignored the views of the people of Kenya as expressed at the
constitutional conference. Adopting in its report the view that
culture need not be entrenched in the Constitution, it recommended the deletion of the chapter. The CoE ultimately gave in
to the pressure from legislators. It adopted a compromise position that retained culture in the constitution but watered it down
considerably, abridging the chapter into a single article, even
while conceding in its report that the provisions on culture were
Constitution and Culture: Being a Kenyan
23
not contentious. The CoE made concessions on two grounds.

To buy political goodwill, it left untouched articles that touched
on the rights of communities, particularly those that had to do
with historically marginalised communities. Then, it gestured towards the third category of constitutions, making provision for
a constitutional, legal and regulatory framework that would facilitate the promotion of the arts and sciences. This was largely to
pacify the economic elite, specifically focusing their elaboration
of the provisions on culture on the concerns of the creative industries. In essence, what this amounted to was a strange hybrid
that acknowledged the centrality of culture to the idea, spirit and
entity of nationhood (articulated in the second mind-set), while
simultaneously mutilating much of the articulation that gave it
life beyond sphere of the economy, bringing us to the uneasy
state of affairs that exists today.
That said, the 2010 Constitution has still made definite
steps in at least acknowledging the critical software essential if
Kenya is to truly fulfil its promise as a nation. The placing of Article 11, in what might be considered the philosophical heart of
the constitution it articulates the culture as the foundation of
the nation. In my mind, it sits comfortably in the foundational
chapters following the preamble that speak to the very essence
of who we are as Kenyans and what Kenya is as a nation.
So, what is a national culture? It is the cumulative civilisation of who we are as one people (not a medley of peoples), one
nation. It is that intangible essence that we recognise when we
say We are One. It is that essential DNA that Frantz Fanon
refers to in the ground-breaking chapter On National Culture
in The Wretched of the Earth that makes a nation out of the diversity of communities and peoples governed by a single state. In
Fanons words, a national culture is the whole body of efforts
24
made by a people in the sphere of thought to describe, justify,

and praise the action through which that people has created itself and keeps itself in existence. A national culture does not
just happen by chance, it is the intellectual product of a collective endeavour that a people embrace as their vision of what
they are at their very best. To paraphrase him, our Kenyan culture take[s] its place at the very heart of the struggle for freedom that Kenya is carrying. It is not the preserve of any one
body, elite or otherwise, but the whole of our efforts together
carrying within the contradictions, aspirations, and essence reflective of ourselves to exist as an identifiable entity within
the world. Our national culture is what makes us Kenyan. What
price do we pay for not making this reality tangible?
Things to think about?

What do you mean by the word culture?
What would you say is the culture of your own community?
Do you share the culture of your neighbours from other
communities?
How do you share your culture with them?
What is the national culture of Kenya?
How can we build a national culture?
5
Secularism and Religion
Gabriel Dolan
rticle 8 of the Kenyan Constitution states briefly but

unequivocally that There shall be no state religion,
but no one can deny that Kenya is a very religious society. Traffic jams abound around most churches on Sunday mornings; Mombasa County has 300 mosques; just about everything
from birthday parties to CDF meetings begin with a prayer.
26
Of course long before we get to Article 8 in the Constitution, we find the first words in the Preamble are: We the people of Kenya ACKNOWLEDGING the supremacy of the Almighty God of all creation. Besides, the word Mungu is the
first to appear in the National Anthem. Yes, Kenya is indeed a
very overtly religious society but what does article eight say to
followers of such diverse religions, sects and spiritualities?
Firstly the article is stating that Kenya has no privileged
or preferred religion. It is also acknowledging that while all religions are permitted the state machinery must not be allied in
any way to any particular religion. This is what we call a secular
state and secularism means that government institutions should
remain separate from religious institutions. The state then must
be seen to be neutral in terms of religion, neither overtly supporting nor advocating for irreligion. This is the principle and
value that is easily enough grasped but what of its implementation; how can we measure the level of its success?
As we struggle to balance the separation of state and religion let us be mindful that many other countries face similar
challenges even after centuries of working with democracy. The
United Kingdom for example still has the Coronation Oath of
1688 whereby the Monarch swears to preserve the Protestant
Faith as the established faith; the Indian government subsidises
Muslim pilgrims to go on Hajj; many Church NGOs in Europe
receive government assistance to do humanitarian work and
Iran went in reverse converting from being a secular state to a
religious one in 1979. The Arab spring has become a nightmare
for Christians who have been forced to flee their homelands in
droves while we hear regular stories of the suffering of Christians in Pakistan under their blasphemy laws.
27
The notion of secularism originated in France where it

was referred to as laicite which attempted to keep religion as a
private affair in the name of building common citizenship and
understanding. In July last year the European Court on Human
Rights (ECHR) upheld the 2010 French law that banned the
wearing of the burqa. To many this ruling was an affront. Its
opponents claimed that freedom of religion had been replaced
with freedom from religion and that the law was a direct assault
on Muslim believers. The ECHR had already upheld Frances
ban on headscarves in educational establishments, and its regulation requiring the removal of scarves, veils and turbans for
security checks.
These are random examples from around the world but
how can we learn from these experiences and avoid conflicts
between religions and with the state here in Kenya? How do we
foster the national values of inclusiveness, non-discrimination,
and protection of the marginalised found in Article 10? How
do we honour the right of everyone to freedom of conscience,
religions, thought, belief and opinion as stated in Article 32 (1)
of the Constitution? Are there any limits on the right to publicly
worship, practise and teaching as envisaged in subsection 2 of
the same article? Do we have suitable legislation to prevent discrimination on grounds of religion?
Put another way, I am suggesting that we should openly
discuss these matters especially at this time with the rising suspicion and tensions that have resulted from the massacres in Mandera and Mpeketoni. If social media is representative of current
views in Kenya then there is every reason to be disturbed by
both the ignorance and hatred between faiths.
This of course is not just a Kenyan problem but a global
one. On January 7th this year, twelve people were gunned down
28
in Paris in an apparent revenge assault on the satirical magazine

Charlie Hebdo. The weekly French magazine unapologetically
defends its right to ridicule and cause offense. That right was defended by many who quoted Voltaire who said, I disapprove of
what you say, but I will defend to the death your right to say it.
In this heinous assault, the justification given was that the
magazine had deliberately insulted Mohamed and the Islamic
faith. Many Muslims were also offended by the content but took
no such reckless action. In the aftermath a demonstration of
support for the magazine entitled Je Suis Charlie attracted millions on the streets of Paris and yet there were no placards raised
that read Je Suis Musulman (I am a Muslim). This protest in
support of the magazine however isolated the five million Muslim community in France who were made to feel as if they were
all responsible for the slaughter.
Of course there is a clash of values and cultures at stake
too. The right of freedom of expression must be balanced with
patience, respect and tolerance. In other words, we must not
overstep the bonds of civility and harmony and we must certainly distinguish between the right to express and the rightness
of what we speak. Our right to insult may well be interpreted as
hate speech in other cultures.
Before the 2013 elections I worked with a team whose task
it was to monitor and record hate speech in the election campaigns. Soon that team moved to places of worship where one
mega church in Bamburi that has been visited by the President
and his deputy spewed hatred for the Islamic faith and its politicians. Recordings of roadside preachers attacking the Christian
faith were also made and both sets presented to NCIC and CID
but no prosecutions followed.
29
There is a great hesitation by law enforcement officials in

Kenya to investigate and prosecute religious leaders even when
they violate the countrys laws. This impunity in turn can lead to
further abuses and corruption. Have we misunderstood the separation of religion and state to mean that religions are not unaccountable for their teachings, tithe and leadership? Religious
leaders frequently appear to be privileged, above the law even
when they preach incitement and rip off their faithful. Why are
churches allowed matangas and keshas with microphones that
keep the neighbourhood awake?
The State of course is aware of the power and influence
of religion on society and is comfortable to share platforms and
frequently beds with their leaders. Politicians are still the major
attraction at fundraisers and church functions. They bring the
media and the lolly.
Recently the Deputy President attended the consecration of
a Catholic Bishop and promised the prelate a new 4WD vehicle
from him and his boss. He also promised to donate two million
shillings towards the construction of a retirement house for his
predecessor. Well there is a no such thing as a free lunch or car.
There is a payback price of course in that the same politicians are
given the microphone to greet the people and buy the silence of
the religious leaders when matters of integrity are at stake.
Few believe that religions remain the conscience of Kenyan
society today. In fact they are very much part of the establishment, rarely rocking the boat on national issues but confining
themselves to addressing sectarian issues that are of particular
interest or benefit to their own denomination.
The boundaries between religion and the state are also becoming less and less marked and that is a very unhealthy trend.
30
The NCCK on November 26th last year issued a statement entitled Christians demand real action from government and Muslim Leaders. The Church body bluntly stated that they have no trust in
Muslim leaders press statements dissociating themselves from
violence against Christians and warned Muslims live everywhere in Kenya and in some places are only a handful. They
proceeded to state that they would support any referendum that
would give more powers to the government to improve security
and wanted the immediate implementation of Anti-Terrorism
laws which they claim Muslim leaders oppose. Their language
was at best inflammatory, emotive and unhelpful at this time.
While Christians have become the target of the violence
Al Shabaabs aim is to set the faiths in conflict and the NCCK
seem to be falling headlong for their bait. Something more is
needed that brings faiths together in a movement of cohesion,
respect and nation building. The approach of NCCK gives the
impression that Christians have a special place in Kenya but in
the process Muslims are being alienated and depicted as a threat
to the security of the state.
Real religion focuses on the Common Good on what will
benefit all Kenyans. It goes beyond the immediate needs of any
faith and seeks only to serve, inspire and unite the whole population. When religion becomes sectarian only concerned with
its own welfare it loses meaning and soon may be dismissed as
irrelevant.
Secularism does give a lot of space for religion in the market place but it must use that space to address people of other
faiths too and promote that common good of the nation. That
is the irony for religions that they are most effective and respected when they care about the welfare of those outsider their own
flock. That is secularism at its best.
31
At a time when the opposition is in tatters, the 2010 Constitution is under assault and every day brings new revelations
of corruption, the major religions remain on the margins with
nothing of substance to say. They all appear just as helpless and
hopeless and resigned to insecurity, a culture of corruption and
the polarisation and ethnicisation of politics as the rest of the
population.
Faiths seem unable to transcend the morass of public life
and unable to boost the morale or morals of the nation. They
may give light relief and encouragement on a weekly basis to
their congregations but offer no clear way forward towards a
more just and democratic society. But should they rediscover
their common vision and mission then they have much to contribute to Kenyan public life.
How much do you know about the religions of people in
Kenya, other than your own?
Do you think it is important to understand more?
How could you learn more?
Are there things about your religion (if you are religious)
that you think may annoy or upset people who have other
religious beliefs?
What can be done to reduce this annoyance or upset?
List the moral beliefs that you think that all the religions in
Kenya share.
6
Democracy:
The primary constitutional value
Yash Pal Ghai
emocracy is the foundation of the constitution. Article 1 says that All sovereign power belongs to the
people....,and the people may exercise their sovereign power either directly or through their democratically
elected representatives. Institutions to which people have
Democracy: The primary constitutional value
33
delegated their powers (principally legislatures, executives and

the judiciary) must perform their functions in accordance with
the constitution. These provisions define the characteristics of
Kenyas democracy: acknowledging the sovereignty of the people, specifying that this power must be exercised in accordance
with the constitution, and providing for the allocation of major state powers. The study of Kenyas constitution is necessary
to understand the nature of Kenyas democracy; the values and
framework of our democracy cannot be derived from academic
literature or the practices of other. Ours is not a majoritarian democracy (in which the majority view would necessarily prevail)
nor does it give all powers to state organs. It is best described as
peoples democracy, participatory democracy and constitutional democracy.
Unlike the older type of democracy which was focused
largely on elections to the legislature and/or the executive, Kenyas democracy is geared principally to abiding by and achieving
national values and principles. Perhaps in the older democracies
desirable values were taken for granted, being embedded in society, which itself was assumed to be homogenousa nation, and
it was not thought necessary to express them in the constitution.
In Kenya we feel we cant take them for granted and they have to
be reinforced by express constitutional provisions, listing them
explicitly: national unity, rule of law, integrity in public life, equal
and fair access to the state of all communities, gender, and regions, human rights, human dignity, social justice and sustainability. And we provided for their enforcement, including specific
powers given to individuals, groups and communities.
The second characteristic of Kenyas democracy is procedural, prescribing that state powers must be exercised in accordance with good governance, transparency, and accountability
34
and provides strong mechanisms to ensure that state institutions

observe these values, including . peoples participation in policy
making and legislative initiatives. Policy making by the state becomes more complex than in the past.
And there is a third difference: older type democracy developed gradually, reflecting changes and balance in society, while
Kenyan democracy is imposed from above, not necessarily
reflecting predominant current social values or organisation,
through the constitution. I shall leave this issue of democracy
from above for another occasion.
The scheme for democratisation is based on the assumption that a common identity of the people as Kenyans must
rise above ethnic identities. Therefore the constitution both promotes and builds on common identity and national unity. Inevitably, therefore, the Kenya democracy is more complex than in
nation-states with substantial social consensus.
Organisation of the state
The single most important provision for democracy is the
restructuring of the state, dismantling the old centralised, single
government. The foremost objective of devolution is to promote democratic and accountable exercise of power and to
give people substantial degree of self-governance. Democracy is
easier to promote if there are several units of power.
Institutions of democracy
State institutions, legislatures, executives and judiciary, and
their structures, are similar to those in older democracies. But
they must be representative of all communities. And the emphasis is less on powers than on functions and responsibilities,
35
and on the purposes for and the manner in which, state power
must be exercised. All powers must be exercised in accordance
with the constitution. All major institutions must protect and
develop the constitution and promote the democratic governance of the Republic. They must be responsive to the concerns
of the people and promote the peoples access to and facilitate
their participation in the affairs of the institutions. The obligations placed on the president show clearly the objectives of
democracy, including safeguarding the constitution, promoting
national unity and the diversity of the people, human rights and
fundamental freedoms and the rule of law. The constitution has
a strong regime of fiscal management, addressing many problems of corruption and inefficiencyand affects the conduct
of all state organs.
Peoples direct powers
People exercise their sovereignty in a number of ways: as
voters, sometimes also as candidates, through powers to recall
legislators for poor performance or misbehaviour, by participation in official policies, petitioning the legislature and participating in its proceedings, initiating legislative proposals, and by
marches and other forms of protestsand by protecting critical
constitutional provisions against amendment.
Politics and elections
Elections to the legislature and the executive are the most
visible sign of democracy. The constitution recognises the universal right to vote as a human right. The right to stand for
elections extends to independent candidates unlike in the past
though the role of political parties remains central. Elections
must be conducted by an independent commission in accord-
36
ance with internationally accepted rules for free and fair elections. Malpractices, including bribes, are prohibited.
The constitution expects to achieve many objectives of
democracy through the regulation of political parties. The aim
is to move away from tribally based political to country wide
parties, parties that unite and not divide the people, that focus
on policies and not personal attacks on opponents, and are internally democratic and accountable to their members, and able
to spend only limited amount of money on campaigns. In this
way the hope is that we would move away from petty tribal and
corrupt politics.
Institutions of enforcement and accountability
An essential aspect of democracy is how its values are upheld. The constitution is particularly strong on this. The most
important institution is the judiciary, which has the ultimate
power to interpret the constitution, and to declare laws, conduct of officials, and policies unlawful, and to protect peoples
rights and freedoms. It has the power to give remedies against
the government for breach of laws. Access to courts is easy and
this makes the judiciary the most important ally of the people.
There are other institutions for accountability, particularly
independent commissions and offices (for audit, implementation of the constitution, protection of human rights, curbing
the greed of parliamentarians and executive officers, investigation of corruption, observance of the constitution). Their primary task, according to the constitution, is protect the sovereignty of the people; secure the observance by all State organs
of democratic values and principles; and promote constitutionalism. Even the role of security forces is re-defined from being
37
oppressors of the people to their protectors (they must always

comply with the law and with the utmost respect for the rule
of law, democracy, human rights and fundamental freedoms).
State of democracy: so far
We can see that the system of democracy is carefully
thought out, in all its aspects. The record so far does not inspire
hope that the rotten political and economic system that had developed since independence has been dented to any significant
degree (despite the valiant efforts of the judiciary and other independent institutions). Devolution has had an uncertain start,
infected from the beginning with the vices of the old regime.
The first elections were deeply flawed (with massive violations
of rules), political parties continue to be personal fiefdoms exploiting tribalism, and corruption has outstripped all previous
records (even of the redoubtable Jomo and Moi). The rich get
richer, the poor poorer. Religious divisions have emerged with
a vengeance. Ethnic conflict is just below the surface; national
unity is neither on the agenda of the government or opposition.
We remain the victims of tribalism and corruption. The government shows scant regard for the constitution. Most worrying of
all, people have made little use of the instruments placed at their
disposal to fashion a new political orderand have used their
votes for expediency rather than rational reasons. The only hope
is that they will take charge now.
38

Did you vote at the last election (assuming you were qualified to do so)?
How did you choose who to vote for?
Are you satisfied with the performance of the people you
voted for?
Will you vote for the same people next time?
If you are not satisfied with them, have you done anything
about it? What do you think is possible for the ordinary
person to do about dissatisfaction (within the law?)
Would you ever vie for public office? If not why not?
How can the people influence the way people in public office behave, apart from voting, or standing for office?
7
Public Participation:
Engaging Citizens in Policy Making
Grace Wakesho Maingi
was recently on a popular morning radio show discussing

devolution, its challenges and progress. Frustrations from
the public on the lack of delivery of services coupled with
increasing taxes took centre stage. In a bid to offer a solution I
boldly asked the listeners to write a letter of complaint to their
specific governor in order to highlight their grievances. The
backlash I got was outstanding with numerous comments that
a simple letter would not lead to any meaningful change leave
alone a response from the county government leadership.
Public participation
Public participation, as defined in the Uraia Citizen Handbook, is when citizens positively take action to be involved in the
affairs of their own government or community. Public participation is a key hallmark of the Constitution of Kenya 2010, which
envisions that active public participation would lead Kenyans to
achieve their aspiration of a government based on the essential values of human rights, equality, freedom, democracy, social justice and the rule of law. Public participation is a national
principle. The Constitution instructs public servants to include
citizens in the process of policy making. It provides citizens
with the right to participate in the decision making process and
other functions of national and county legislative bodies. Specifically articles 118(1) (b) and 196 (1) (b) direct the national and
40
county legislatures respectively to facilitate public participation

in its work. Article 119 (1) states that citizens have the right to
petition Parliament to consider any matter within its authority.
A key ingredient of active and effective citizen participation is access to information guaranteed by article 35. Parliament
and the county assemblies are directed by articles 118(1) (a) and
196(1) (a) to hold public meetings and conduct their work in the
full view of the people. Our parliament and county assemblies
are required to ensure that they provide relevant information
and environment for meaningful public engagement. This includes, for example, publicising the holding of a county forum
to discuss the county budget well in advance, through a medium
that is accessible to most people (which means radio rather than
newspapers) and providing relevant documents in advance.
Levels of participation
Public participation does not end with the provision of information. National and county governments must actually consider the views of the people and take them into account. Public
participation has been aptly analysed by Sherry R. Arnstein in
terms of eight levels ranging from non-participation to citizen
control. The lowest levels of citizen participation are manipulation and therapy where citizens are educated about or cured of
their concerns or anxieties through, for example, political rallies,
encouraging them to believe they are participating in governance
when in fact they have no role in the process of decision-making.
The lower-middle levels of participation consist of informing and consulting citizens, categorised as tokenism. The primary objective of the power holder is to explain to, and to hear
from, citizens on policies and decisions. Unfortunately these actions will ultimately not affect the outcome of the governments
Public Participation: Engaging Citizens in Policy Making
41
decision-making process. The upper middle level of citizen participation is placation where citizens provide advice during the
deliberation process while the power holders keep the authority
to make final decisions.
The highest levels of citizen participation reveal increasing degrees of citizen power particularly in the decision making process of government. The lowest of these is partnership
which means that citizens can negotiate with power holders
and thus the responsibility to make decisions is shared. The two
highest levels are delegated power and citizen control. These
two levels involve increasing degrees of citizen power over the
decision-making process through such things as more seats on a
committee or even full managerial authority.
In the case of Kenya, the Constitution contemplates consultation and participation at all levels, including the presidency.
This reflects the fundamental constitutional principle, emphasising the sovereignty of the people which may be exercised directly or indirectly. However, during my interactions with various
public servants at the county level on public participation, the
constant complaint I have received is that even if steps are taken
to organise forums for the public, they rarely show up. But Mark
Funkhouser, mayor of Kansas City from 2007 to 2011, has been
quoted as saying In my experience, citizens are not apathetic
but they are rational. Give them an opportunity for meaningful
engagement with others in their community about issues that
directly affect them and their neighbours. . . and theyll show
up. And the legitimacy and sustainability of government will be
strengthened. I agree with him. If Kenyans knew that their participation in, for example, a community security meeting would
mean that their views will be seriously considered and impact
action, I believe they would attend and actively participate.
42
Kenyan experience
Various case studies documented by Uraia and the Institute
for Economic Affairs (IEA) show how various county governments have ensured public participation in the county planning
processes. In mid-2013 Nandi begun the process of developing
the Nandi County Integrated Development Plan (CIDP) with a
launch and planning meeting in Kapsabet town. At the meeting
one of the key things that was agreed upon was how the public consultations would be conducted. Sub-county forums were
held and the local leaders, community radio stations and print
media were used to mobilise the public. At sessions targeting
persons residing outside the county there was active involvement of both public and private sectors. Laikipia County adopted similar approaches during the development of its CIPD and
also established a dedicated email address to receive wider public
input.
A number of cases have been filed in the High Court of
Kenya on the principle of public participation. My most notable one is the April 2014 judgment on the Kiambu Finance Act
2013 where the constitutionality of the Act was challenged on
a number of grounds including the lack of public participation.
In that case Justice Odunga stated that public participation
ought to be real and not illusory and ought not to be treated as a
mere formality for the purposes of fulfilment of Constitutional
dictatesIt is not just enough in my view to simply tweet messages as it were and leave it to those who care to scavenge it.
Looking elsewhere
In Recife, Brazil participatory budgeting has been promoted by getting the citizens to vote on various issues and citizen
bodies also to monitor the implementation of projects. Other
Public Participation: Engaging Citizens in Policy Making
43
processes also involve school going children who participate in

deciding what projects are undertaken in their schools and the
city. The whole process has been described: the budget process
has become a new meeting ground on which civil society, municipal authorities and the citys legislative branch are learning
how to work together and assume collective responsibility for
the future of the city. This not only broadens democracy; it also
deepens democracy in daily life.
Back to my letter writing suggestion to the radio listeners,
again I say it here - If we do not engage we cannot participate,
if we cannot participate we cannot begin to cause a change. Let
us give public participation a try, we have to begin somewhere.
Have you attended any public meeting in your county about
the budget or other topic? If not, why not?
Does one of the following statements best reflect your own
attitude?
Its really important for citizens to take an active interest in what is happening in their country or area
I like reading about politics, but I think that is just about
the intrigues of politicians; it doesnt really concern me.
I tweet about my views; thats enough.
Why bother? We cant make a difference anyway.
Why not work with a group of like-minded people to prepare a petition to Parliament, Governor or County Assembly about a topic that you feel strongly about? Make sure
that you choose your topic carefully, and that you know who
can do something about it, and that you follow up on the
petition.
8
Separation of Powers, Checks and
Balances, and the Rule of Law
Yash Pal Ghai
n this chapter, we look not at the virtues of individuals or

governments, but of systems of government. In recent
months there have been major conflicts between state institutions, quarrels between Governors and Senators, the Senate
and the National Assembly, the Executive and the National Assembly, Governors and members of County Assemblies. There
have been spats between the judiciary and the other state institutions, while the judiciary has declared unconstitutional the
acts both of the legislature and the executive. There is a real
danger that if these antagonisms continue, there will be a total
collapse of government institutions. Yet there is no excuse for
squabbles. The constitution is clear as to their respective powers
and responsibilities, and the relationship between them. These
crises have arisen only because the protagonists have ignored or
twisted constitutional provisions to pursue their political objectives and personal gains.
Three concepts
The constitution is based on three important and closely
connected institutional virtues: separation of powers, checks
and balances, and rule of law. The separation of powers refers
to the division of state powers among two or more institutions.
The objective is to prevent the oppression of people by the
Separation of Powers, Checks and Balances, and the Rule of Law
45
concentration of power and its authoritarian or tyrannical use.

Checks and balances refers to mutual control or scrutiny among
institutions to prevent their abuse of powers. The doctrine of
separation of powers says that different kinds of state functions
should be vested in different organs and an organ should not
usurp the functions of another. There is a degree of specialisation: the legislature, representing the people, is primarily concerned with policy and laws, the executive, with administrative
skills, is responsible for implementing laws and ensuring peace
and order, while the judiciary, trained in the law and procedure
has the ultimate responsibility for the interpretation of the constitution and laws, and their application to concrete caseseven
the conduct of the president and legislators. Thus the separation of powers does not say that an organ may not review the
exercise or misunderstanding of the power of another organ in
accordance with the constitution. Nor does it rule out consultations between different organs. In fact the objectives of the
separation of powers cannot be achieved without linking it to
checks and balances (some examples are given below).
The rule of law means that the powers of the institutions
and the relationship among them are determined by the constitution and lawswhich must be observed strictly. The president
is as much bound by the law as a hawker. The same idea is expressed in the statement that no one is above the lawnot even,
perhaps one should say, especially not, the president, whose ability to abuse power is greater than any other persons. The knowledge of the constitution is therefore important so that members
of all institutions operate within the powers granted to them,
in accordance with stipulated procedures. However much the
president dislikes a constitutional provision or a decision of a
court, he or she has to respect and follow it.
46
The Constitutions conception of the separation and

functions of power
What I have sketched above is an abstract picture of the
interaction between the separation of powers and checks and
balances. In order to understand its implications for the system
of governance and relationship between different state organs,
it is necessary to examine the orientation and provisions of the
constitution. A close study of the constitution is necessary to
understand the content and significance of these concepts and
how they interact under this constitution. Some uses of power
are prohibited, and some are obligatory. Often the procedure
for doing something is specified (e.g., consultation and participation). This approach acknowledges and increases the importance of checks and balances as well as supervision over and
accountability of state organs. It points also to the need to contextualise the concept of the separation of power. Unlike older
constitutional orders, the powers given to state organs are to
be exercised not at the discretion of the organ, but in accordance with the objectives stipulated in the constitution. In many
respects the older versions of the separation of powers do not
fit the newer constitutional orders. The precise contours of the
separation of power must be established not by reference to
these older notions or the practise of other countries, but by
the objectives, structures and logic of the constitution. Even
in the earlier period, the separation of powers was manifested
differently among states deeply committed to the separation of
powers, for examples between Britain and the US.
Separation of Powers, Checks and Balances, and the Rule of Law
47
Contextualising separation of powers

Three factors in a constitution are important to understanding the context of the separation of powers, checks and balances and the mechanism of the rule of law. The first is values
and principles. Few constitutions are so value laden as the 2010
Constitution, including national unity, democracy, inclusion, human rights, human dignity, social justice, integrity, and accountability and transparency. The second is obligations placed on
state organs. These include, for example, that state officials must
exercise their functions consistent with constitutional values
and procedures (such as integrity, fairness, and participation of
and consultation with the people). More specifically, parliament
must protect the constitution and promote democratic governance. The president must obey and uphold the constitution, promote the unity of the country, ensure fair representation of all
communities in public services, and protect human rights and
freedoms. The judiciary must ensure justice regardless of status, and protect and promote the purpose and principles of the
constitution.
The third is the interaction between the principal organs.
The National Assembly must review the conduct of the president and other state officers (including initiating the process for
their removal) and has oversight of state organs. Presidential
approval of bills passed by parliament is necessary for them to
come into operation, but the veto can be overcome by enhanced
votes (two thirds of members). Parliament can amend Bills (including financial ones) introduced by the government (or others). The judiciary is given broad authority to interpret the constitution, by reference to constitutional values and principles, on
application by any organisation or individual. The judiciary can
review the validity of laws passed by Parliament and approved
48
by the president. In protecting peoples rights and freedoms, the

judiciary can declare laws invalid, or actions of the executive
unconstitutional, or compel the state to a course of action to
satisfy peoples social and economic rights.
It will be clear from this that the criticism levelled against
the judiciary for the oversight of the acts and procedures of
other state organs is unjustified. Comparisons with other countries practice are irrelevant (except where the courts jurisdiction is as broad as here, as in South Africa). We must take the cue
from our constitutionand if all state organs did that, they (and
the country) would avoid the mess they find themselves in. The
importance of the major state organs conforming to the constitution cannot be overemphasised. If they continue to fight each
other as they are doing now, in disregard of their powers and
responsibilities, they will surely undermine the constitution, and
plunge throw the country into a crisis.
What do you think really drives the disputes between different parts of the system?
Can you think of examples of situations in Kenya where the
rule of law has not been respected?
Are there things that ordinary citizens can do to try to ensure that the rule of law is respected?
9
The Trial of Integrity in Kenya
PLO Lumumba
Introduction
he Constitution of Kenya 2010 has been described as

progressive. Commentators have identified the provisions on national values and leadership as its two important pillars. This is logical because poor governance was at
the very heart of the quest for a new constitutional dispensation. The use of public office for private benefit by the political class had not only caught the eyes of commentators within
Kenya, but as early as the 1970s prompted the then Tanzanian
President Mwalimu Julius Nyerere to describe Kenya as a man
eat man society.
50
In 2001 when the Constitution of Kenya Review Commission (CKRC) embarked on the task of collecting views on
various aspects of the Constitution, a large number of Kenyans
cited corruption and the absence of clear national values and
principles of governance as the undoing of the country.
The quality of political leadership was also identified as a
source of the countrys problems and it is for that reason that
Chapter Six is dedicated to Leadership and Integrity.
The Law and Institutions
Internationally and regionally, Kenya is a signatory to the
United Nations Convention Against Corruption (UNCAC) and
the African Union Convention on Preventing and Combating
Corruption (AUCPAC).
At the national level, even prior to the enactment of the
Kenyan Constitution 2010, a number of laws had been enacted
to deal with integrity issues; these include the Public Officer
Ethics Act of 2009, the Anti-Corruption and Economic Crimes
Act of 2003 and the Proceeds of Crime and Anti-Money Laundering Act of 2009.
After promulgation of the Constitution 2010, older laws
were amended and new laws enacted in order to ensure compliance with the Constitution; these include the Leadership and
Integrity Act of 2012, the Public Finance Management Act of
2012 and the Ethics and Anti-Corruption Commission Act of
2011.
If the presence of institutions and the laws were to constitute the magic solution, Kenya would be one of the least corrupt countries in the world, but we know better because the gap
between law and practice is wide and continues to widen.
51
The Current Situation

Today, in the name of allegiance to constitutional requirements, integrity is often mentioned and the country has seen
senior Police Officers, Cabinet Secretaries and Judges being vetted and subjected to Parliamentary scrutiny. One would assume
that these processes should solve the problems of integrity and
herald the emergence of a Kenyan ethos; unfortunately, available evidence suggests that, despite numerous efforts made and
much legislation enacted, Kenya remains what Mwalimu Nyerere described it as.
Kenyans still elect and appoint individuals of questionable
character into public office and corruption appears to be growing a pace. Corruption is no longer confined to our borders.
Stories continue to filter through that some of our institutions
such as Kenya National Examination Council (KNEC) and Independent Electoral and Boundaries Commission (IEBC) may
have been involved in activities that call into question the integrity of our national examination and electoral system respectively. These latter day revelations are emerging even as the ghosts
of Goldenberg and Anglo-leasing continue to haunt us.
Since the 2010 Constitution, the Auditor General is on
record as lamenting that numerous revelations in his Annual
Reports are at best treated with contempt. Devolution, whose
potential for unlocking the countrys opportunities cannot be
faulted, is already being abused through wastage and corruption by some Governors and Members of County Assemblies
(MCAs). Makueni County for instance has seen its Governor
placed under siege for standing firm against corruption. The
public procurement system, despite its elaborate requirements,
has only succeeded in allowing theft in accordance with the law.
52
The current situation begs the question as to whether the

fundamentals of leadership and integrity have been internalized
by leaders and wananchi alike.
In the context of Vision 2030, the National Economic
Council in the Office of the President under the then President Mwai Kibaki, assembled a Committee of Experts (CoE)
to evaluate the national value system. They did their work and
some of its members claim that it is out of their work that we
have Article 10 of the Constitution 2010. Regardless of whether
their claim is true or not, the defining question is, why is it that
despite the presence of numerous laws and constitutional provisions, Kenya stands out as a country that is rudderless on issues
of integrity?
The National Problem
Today, Kenya is under threat from negative ethnicity and
corruption. Negative ethnicity informs and defines the conduct
of politics and business in Kenya and operates under one unwritten rule, everybody is guilty except those from my community. This attitude has created a culture of impunity which
makes it difficult for institutions to fulfil their mandates because
of political interference or intimidation.
I remember when I served as the Director of the Kenya Anti-Corruption Commission, one of the individuals who
hatched the plot to remove me from office through amendment
of the law told me to my face, We appointed you not to fight corruption but to appear to fight it. But what you have been doing with your group
is to destroy our political careers and tarnish our names. We will not let
you do that. We will either remove you from office or kill you. Well, they
did not kill me but they used the law to remove me and four of
my colleagues from office. The irony is that at the same time I
53
was being removed from office, anti-corruption crusaders such

as Anna Hazare in India and Monica Macovei in Romania were
being protected by the public as warriors for truth and justice,
but in Kenya the public was unmoved and untouched.
The second problem in Kenya is corruption. Corruption
is alive and well and its perpetrators have become bolder over
the years. Their footprints are seen in the public and private sector which they bestride like the fabled colossus. Occasionally, a
few of their number may be arrested and charged in court with
much fanfare but ultimately they will never be convicted.
The Way Forward
Sorrows and lamentations have defined our approach
whenever we are confronted with issues of integrity because
there is a sense of helplessness. But the question is, what is the
value of a Constitution if we cannot live up to its dictates?
Our Constitution sets out our national values and every
time an appointment is made by the President, the individuals
concerned are taken through a process of vetting; however, beyond the drama and circus the culture of impunity is deeply
rooted.
Parliamentary Committees and Commissions of Inquiry
also occasionally expose rot but nobody is ever punished because the crimes are treated as victimless.
If Kenya is to realize her potential, the political leadership
must be resolute. Individuals whose conduct offends the Constitution and other laws should not hold public office and must
be punished in accordance with the law.
The largely apathetic Kenyan population must also stir
from its slumber and embrace a culture of zero tolerance for
54
unethical conduct and criminality because in the end the dry

written constitution will not improve the lot of Kenyans. A dry
constitution is given life and meaning by the politicians who interpret and operate it and by the vigilance of the populace.

What do you think Nyerere meant by Man eat man society?
Have you ever taken or give a bribe (this one for private
reflection only)?
Is it true that in Kenya people tend to forgive the wrongdoing of people from their own community much more readily than of people from another community? Is this right?
What do you think is meant by the word impunity?
10
Equality and Equity:
Key Constitutional Values
Heidi Evelyn
any religions insist that all human beings are equal

before God. Yet, throughout the ages, people and societies have struggled with this notion, finding various differences to justify the different and even cruel treatment
of those unlike themselves. Kenyas colonial history serves as a
painful reminder of the injustice of unequal treatment.
In the 21st century, however, international law and the laws

of most countries provide for basic human rights for every human being regardless of the many differing characteristics that
have been used to divide those who are considered persons and
those who are not. Accordingly, it is not surprising that equality
is one of the foundational values of the Kenyan Constitution.
In fact, the notions of equal rights, equal protection from the
law and equal opportunity are distributed throughout the entire
document.
Kenya is still a very unequal country. In economic terms, it
is the most unequal East African country, though not as unequal
as South Africa or Nigeria. The Society for International Development has shown that Tana River is the most unequal county
and Turkana is the most equal (will oil wealth change this?). And
Nairobi consumes twice as much as its population share would
suggest, but some counties consume less than half of their slice
of the pie.
56
Defining Equality
What exactly does equality mean? Everyone is equal. Yet
every society continually treats different people differently. No
country exists where anyone who wants to attend university can
do so. Democracies do not usually allow children to vote. Everyone pays a different amount in taxes. So what does a constitution based on equality signify?
Equality of all before the law means that the differences
which we accept do not affect a persons individual abilities
such as race, ethnicity, gender, class, religion, culture, disabilities
cannot be used to treat persons differently. These personal
traits cannot be easily changed and are in fact, part of who a
person is.
But equality does not stop there. Equality means that every
person should be treated with the same respect and deserves
a generally equal opportunity in life. The Constitution actually
stipulates that both the state and a person cannot discriminate
against another person on any ground including but not limited
to the unchangeable grounds listed above.
Other traits, however, which justify differential treatment in
a free and just society, such as academic performance, maturity
or wealth, can be used to treat persons differently. Usually, these
traits can change over time. The key to understanding equality
is figuring out whether unequal treatment is based on an unchangeable ground and whether that ground is a justifiable way
to treat people differently in the specific circumstances. These
are complex questions that require detailed analysis.
Equality and Equity: Key Constitutional Values
57
Substantive Equality
The Constitution not only refers to equality, but also equity
as a national value. Equality cannot be approached in a strict
sense which merely requires that jobs or school vacancies are
open to everyone. To make equality meaningful, it must be contextualized. The Constitution requires us to go beyond ensuring there is no obvious discrimination in awarding opportunities
and to take an equitable view of the way society organizes itself.
If some members of society are disadvantaged by cultural
or social barriers, equal treatment or formal equality will not
result in true equality of opportunity. In order to obtain meaningful equality, that is where all persons are equally situated to
excel, substantive equality is required. The principle of substantive equality acknowledges the differences and disadvantages affecting marginalised groups in a way so as to level the playing
field. Substantive equality recognizes that in certain cases, some
groups may require help that intentionally reverses the usual discrimination to overcome adversity and attain real equality.
Systemic Discrimination
Non-discrimination is another foundational value of the
Constitution. It is clear that harmful discrimination will not be
tolerated. But when this concept is viewed in conjunction with
substantive equality, the responsibility of society is emphasised.
Is it not true that members of marginalised communities fail to
benefit from jobs or school vacancies due to fewer resources,
role models, information and networks? Is it surprising that we
have fewer women in positions of power today given the historical attitudes towards education of the girl-child? Systemic
discrimination affects an entire class of people and contributes
to the overall underprivileged standing of a marginalised group.
58
Discrimination may be unintentional. If an organizations

hiring process has the effect of only attracting one type of candidate, it can still be discriminatory even if it did not intend to
exclude. For example, recent audits of the ethnic composition
of the Kenyan Public Service revealed a bias in favour of Kikuyu and Kalenjin staff. While much has been made of tribal
attitudes and these communities taking advantage of the power
of the presidency, it really does not matter whether decisionmakers deliberately recruited members of their own community
or not. If how recruitment was done had the effect of promoting one community over another, even if the practice appeared
to be fair, systemic discrimination exists.
Affirmative Action
Affirmative action has been used in many countries to
address inequality. It aims to correct inequality by promoting
members of a marginalised group over others in order to amend
for past wrongs that have resulted in the marginalised groups
overall disadvantaged position within society. Affirmative action
programmes need to be viewed through the contextual lens of
substantive equality. In order to create a level playing field, disadvantaged groups will sometimes require additional help to correct their underrepresentation in merit based positions. In such
cases, equal treatment will not produce equal results.
The governments increased allotment of national secondary school spaces to graduates of public schools as opposed to
private schools is an example of affirmative action. While this
action attempts to remedy the educational disadvantage faced by
children of poor families (who for the most part attend public
schools), it will, of course, also affect some students adversely
as there are now fewer spots available to graduates from pri-
59
vate schools. Nevertheless, the comparison is not simply between graduates of public versus private schools. Rather it takes
into account that attendees of public schools consistently score
lower due to non-ideal situations in public schools and the economic conditions of the family. If their familys economic situation was equal to that of most private school graduates, public
school graduates would likely obtain similar results.
The fact that some members of society are negatively affected is an unfortunate by-product of affirmative action programmes. Nevertheless, where there is a real need to remedy an
inequality that exists due to a personal characteristic that one
has little control over, the overall result of promoting a marginalised group over others temporarily can be justified in a free
and democratic society. It should be noted here that children
who grow up in poor families are often victims of the cycle of
poverty where family members are subjected to additional challenges and fewer opportunities. Children do not have control
over their familys circumstances. Moreover, protection of the
marginalised and inclusiveness are also underlying values highlighted in the Constitution, which means that we all have a duty
to ensure that no groups civic, economic, or social participation
is curtailed.
Equality in the Constitution
Equality is mentioned throughout the Constitution and
repeatedly in the context of gender equality. Gender is an unchangeable ground that has been used in nearly all societies to
distinguish between persons and treatment. Yet, the reasoning
for this differential treatment cannot be justified in a free and
just society. Consequently, women have been marginalised from
60
many opportunities, including positions in government and other spheres of influence. In order to remedy this injustice, the
Constitution is explicit that gender equity must apply in all matters of democracy and governance.
In addition, great inequities have existed between different
regions of the country for a variety of reasons, though none
of them justified. As a result, the Constitution mandates that
an Equalisation Fund be created to try to even out some of the
great disparities in resources between different counties. Such
provisions are common in large countries where the prosperity
of different regions can vary greatly and also differ over time.
Equalisation funds are an attempt at creating economic equity,
at least in government resources, between citizens of different
regions.
Equality and Equity as National Values
As a national value enshrined in the Constitution, the notion of real or substantive equality should permeate every aspect
of Kenyan life, from hiring practices to provision of government services to tax collection to pricing strategies. It is undeniable that differential treatment exists in Kenya today and that
the difference often comes down to wealth, power and whatever
favour can be curried with the decision-maker of the hour. Yet
in order for equality to be felt by all Kenyans, like so many other
enhanced rights provided by the Constitution, it must be demanded by and from all members of society.
Various avenues of affirmative action should be debated
but the downside for some must also be accepted. It is up to
government, civil society actors, community leaders and the people themselves to ensure that minority and marginalised voices
61
are heard so these debates are played out in a constructive way.

No society is completely egalitarian, however, everyone should
strive towards equality as a guiding principle in their own lives
as well as in their participation in the community at large. The
Constitution is a living document and the source of its power
is how Kenyans use it in their everyday lives. The power of the
Constitution is the many avenues it provides for Kenyans to demand their rights.
Do you feel equal to others? If not, what prevents you from
feeling equal?
Do you think that perhaps people with a disability, or people
from minorities, sometimes feel that they are treated less
equally than others? Why is this?
Do you feel that Kenya is becoming a less or a more equal
society?
Does equality mean that everyone has to be the same?
Can you achieve equality without equity?
If one part of the country has for a long time been better served than another, how can equity between them be
achieved?
11
The Missing Link: Challenges in
Legislative Accountability in Kenya
Wanjiru Gikonyo
ssential aspects of good governance include integrity,

transparency and accountability (Art. 10(2)(c) of the
constitution). One of the key institutions charged with
ensuring accountability of government is the legislature through
their oversight mandate. The Speaker of the National Assembly
recently ordered the disbandment of the Public Accounts Committee (PAC) amidst allegations that some of its members had
accepted bribes to doctor a key report.
The Missing Link: Challenges in Legislative Accountability in Kenya
63
At the county level, some county legislatures have been

accused of extorting from the executive for personal gain. In
Makueni County, this has forced the Governor to demand dissolution of the county government. This in turn has stalled development projects in the county. Lack of accountability results
in the poor administration of budgets, which leads to poor service delivery.
This article seeks to explore the challenges in legislative accountability in Kenya with a view to provoking suggestions into
how to resolve the missing link in Kenyas quest for accountable
governance.
What is accountability?
Accountability is serious business and in a country like
Kenya, where up to 40% of our national budget is routinely unaccounted for, no one can contest the need for accountability at
both levels of government. Indeed, accountability is recognised
as a national value applicable to all state organs, state officers,
public officers and all persons. Article 174 provides one of the
objects of devolution as the promotion of democratic and accountable exercise of power and Article 201 provides for openness and accountability in financial matters. The values and principles of the public service (Article 232) further bind all public
officers to accountability for their administrative acts.
Accountability may be defined as the duty of government
officials to account for and take responsibility for their actions.
Accountability requires that those entrusted with the responsibility for resources to provide justifications for their management and performance. Accountability addresses several concerns such as relevance, efficiency, effectiveness, transparency,
64
cost effectiveness, public participation and inclusivity, all of

which provide a basis for interrogation of government actions.
Accountability and oversight
Oversight may be understood as the review, monitoring and
supervision of government policies, programmes and activities
as executed by its public offices and institutions. The legislatures
oversight of the executive is designed to ensure that the tax payers money is spent optimally as well as to investigate, detect
and prevent poor administration, waste, abuse, fraud, arbitrary
behaviour and dishonesty.
Key institutions in exercising oversight include the legislature and constitutional commissions (Auditor General, Controller of Budget, Ethics and Anti Corruption Commission and the
Ombudsman). The public also has an important oversight role.
Poor oversight has been a hallmark of the Kenyan legislature
and it is very disturbing that the pattern appears to be replicating
itself at the counties. Whereas under a democracy, the arms of
government are subject to separation of powers, in Kenya the
legislature has historically been subject to the control of the executive. Despite the fact that the legislatures have gained progressively more power, in practice if not in law they remain subject to
political control of the executive, belying their legal status.
There is a continuing trend for the application of oversight
powers based on the dictates of personal and political interests
through horse-trading and bribery amongst committees. An example of this is the numerous high profile investigations of parliamentary committees into grand corruption scams, most of
which have come to naught earning the Kenya parliament the
dubious title of the largest auction house in Africa.
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Impunity undermines accountability

The failure by state officers and the institutions they head
to enforce Chapter 6 is another factor undermining the fight
against impunity in Kenya. During debate on the Leadership
and Integrity bill during one sitting of the 10th parliament, one
member is on record as saying that the leadership of political parties
are the lords and masters of impunity. The corruption rot in Kenya
has been likened to a decaying fish as the rot emanates from its
head.
It is no surprise then that political parties across the divide
ensured the watering down of critical accountability legislation
below the constitutional threshold, including the Leadership and
Integrity Act (2012), the Ethics and Anti-corruption Commission Act (2011), the Elections Act, and the Political Parties Act.
Examples of which are the watering down of wealth declaration
provisions, the removal of life style audit provisions, dilution of
political campaign financing disclosure requirements, lowering
the threshold for public appointments to include those indicted
with criminal and civil crimes, and so forth.
The quest for leadership accountability has been further
hampered by the failure of the Registrar of Political Parties to
enforce integrity standards against candidates during the past
elections particularly during the vetting process of candidates;
failure to make important information on political parties public; failure or unwillingness to fulfil its mandate; lack of personnel; and, unresponsiveness to public demands for information.
In the build up to the elections some MPs expressed strong sentiments against the person of the Registrar of Political Parties
for behaving like the Registrar of a certain party.
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Key institutions such as the EACC and directorate of criminal investigations have consistently undermined prosecutions
through shoddy investigations. Kenyans witnessed a long drawn
and expensive public inquisition on the Goldenberg scandal,
which failed to result in prosecutions. Culprits in the Angloleasing scandal have only recently been charged over 10 years
after the crime. It was only after in the famous chicken gate
scandal prosecutions by the Special Fraud Office in the UK that
key IEBC officials were indicted in Kenya. We await to see the
veracity of the evidence and trial process.
Accountability and access to information
Whereas considerable gains have been made in access to
public information, there remain some bastions of official secrecy such as the law governing private companies which does
not require disclosure of company directors; the Official Secrets Act is still in place and selectively applied especially in large
infrastructure and resource management projects such as the
standard gauge railway and oil and gas sectors.
Kenya remains a country that is hostile to whistle blowers
who are subject to intimidation and unfavourable court rulings,
discouraging whistle blowers out of fear of subsequent recrimination. The ongoing defamation case against John Githongo
with regard to the Anglo-leasing scandal is a case that has drawn
much interest in this regard.
The media ownership patterns in Kenya have created an
oligarchy of business interests which is oftentimes pliable to
government interests. Despite progressive provisions in the
constitution, political parties are the de facto property of certain
leaders who roundly influence the nomination processes and
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have extended their control into the legislatures through the appointment of party hawks in key leadership positions.
Accountability and participation
Public participation is critical in the enforcement of accountability and civil society and county governments will do
well to forge an agenda that promotes social accountability at
the county level through proactive information disclosure, promotion of social audits and effective public participation under
county governments. In this regard, the accountability of political leaders is thwarted by restrictive recall laws passed by the 10th
parliament which make the recall of either legislators or MCAs
a virtual impossibility.
Citizen vetting mechanisms through the social vetting of
political candidates is another tool that civil society can use in
conjunction with citizens to vet political leadership.
The Missing Link
The National Budget Policy Statement 2015 recognises
that poor budget execution is the biggest impediment to the
realisation of Kenyas ambitious development goals. The Auditor Generals report for the financial year 2013-13 demonstrates
that only 12% of accounts were not qualified, 50% were qualified whilst the rest had material defects and likely corruption. It
is this report that has then become the subject of alleged bribery
as the Public Account Committee chair is accused of watering
down the committees recommendations.
Whereas the Constitution of Kenya provides a very progressive framework for accountability, it will only be realised if
the individuals key offices uphold its values and objectives. The
68
chicken gate and PAC scandals demonstrate that whereas comprehensive gains have been made in the architecture of accountability, the culture of political impunity remains the biggest threat
to its implementation. The dearth of individuals of courage and
conviction in critical oversight institutions makes these institutions susceptible to corruption. This remains the missing link in
Kenyas governance.

Is lack of accountability the result of poor leadership, or are
there other explanations?
It is probably true that there is corruption in every country;
does this mean it does not matter?
How has corruption affected you personally?
Have you ever refused to give a bribe or refused one offered
to you?
Is bribery the only form of corruption?
12
The Values of Money
Jason Lakin
significant change in the distribution and use of resources was among the most ardently desired objectives of Kenyas 2010 constitutional reform. For this
reason, Chapter 12 of the constitution lays out both detailed
principles and elaborate procedures for making decisions about
public finances. What do these principles and procedures indicate about the intended aims of Kenyas public finance system?
In my view, the core values are reducible to two: public engagement throughout the process and equity in distribution of resources. These core values are supported by some additional
principles, however, which can be discerned from procedural
choices. These principles include: choices should be deliberative
and not left to any one institution; democratic choice should
be partially constrained by detailed technical guidance; decisions
should be frequently reviewed and revised.
Participation
The first principle in Article 201 is openness and accountability, including public participation in financial matters. This
builds on the broad values underlying the constitutional order
as a whole as defined in Article 10, which refers to democracy
and participation of the people as national values. While public
participation in finance is not defined, the constitution requires
public consultation at specific moments. Among these is the
70
moment when the decision about how to allocate funds among

the counties (the formula) is made (Article 217), and in the annual decision by the parliamentary budget committee about how
to respond to the executives proposed budget (Article 221).
It is noteworthy that these clauses direct Parliament to
consult with the public. In the Public Finance Management Act
2012, there are further requirements for executive consultation,
including a requirement to consult the public in drafting the national Budget Policy Statement and the requirement for each
county to create a special body, the County Budget and Economic Forum, to consult the public on county budgets. Taken
together, the constitution and PFM Act envision considerable
consultation throughout the year between executives, legislatures and the public. This consultation naturally rests on a general environment of transparency, captured by the openness
in Article 201, and transparency and accountability in Article
10, but also specific references to transparency and efficiency in
the keeping of financial records, the procurement of goods and
services, and the audit of government accounts (Articles 226
and 227). Article 10 also mentions integrity in connection with
transparency and accountability, and it can be inferred that the
accounting officers appointed under Article 226 must be, like all
government officers, transparent, accountable and persons of
integrity.
Equity
Article 201 is also explicit about the equity principle, which
is expressed in various clauses referring to sharing of revenues,
development, and the burdens and benefits of the raising and
spending of public funds. The equity principle is expanded upon
in Article 203 which refers to the factors that should determine
The Values of Money
71
the county shares of national revenue. The constitution mentions developmental needs, fiscal capacity, and incentives for
counties to optimize their own revenue collection (what is usually called fiscal effort). Economic disparities and affirmative action in respect of disadvantaged areas and groups, are
also mentioned. The Equalisation Fund is designed to channel
a small fixed share of annual revenues to marginalized areas in
order to bring the quality of those services [roads, water, electricity and health] in those areas to the level generally enjoyed
by the rest of the nation, so far as possible. Equity must also
be considered between current and future generations, meaning
that we must consider the benefits and costs to different generations of choices we make today, such as contracting new debt.
Deliberation and separation of powers
So much for the two major values of participation and equity. I turn now to the supporting principles embedded in procedure. The first is deliberation and separation of powers. If
we look at the annual division of revenue, we can see clearly
how this first supporting principle operates. First, the timeframe
for the decision is extended, with recommendations tabled by
January 1 and a decision reached only by March 15. These two
and a half months are meant to be filled with active deliberation on the published recommendations of the Commission on
Revenue Allocation (CRA), a response to those recommendations from the National Treasury, and then deliberations in Parliament. While there has been debate about the proper role of
the Senate in these discussions, a Supreme Court advisory opinion clarified that both houses of Parliament should be involved,
meaning that there are four major actors that contribute to this
decision: CRA, Treasury, National Assembly and Senate.
72
How is democratic choice partially constrained by technocratic guidance? As noted, the constitution provides a very
clear delineation of equity principles in Article 203, which must
be taken into account by these actors in determining how to
share resources. The constitution is also very clear on the services covered by the Equalisation Fund. The decision to give
an autonomous, quasi-technical body, the Commission on Revenue Allocation, the agenda-setting power in these discussions
was also intended to moderate the power of elected officials in
the process (as well as of the unelected officials at the National Treasury). Similarly, consider the Salaries and Remuneration
Commission, which controls the salaries of state officers and
sets the agenda for the determination of public sector wages
as a whole. Again, a central public finance question was not entrusted wholly to democratically elected actors.
Finally, the requirement for an annual division of revenue
and a revision of the criteria for revenue sharing among the
counties every five years indicates a desire to avoid making permanent decisions and to ensure continuous debate on these
matters. This reflects a desire to avoid locking in poor or potentially unfair choices that might lead to perceptions of permanent
minorities or irremediable inequities.
How are we doing?
So how well have we done so far in implementing these
principles? Lets start with participation. There is no question
that the budget formulation and approval process starts earlier,
lasts longer and is more open to public scrutiny. This is true in
spite of numerous delays and failures, such as the fact that the
Division of Revenue and County Allocation of Revenue Bills
have not been released or passed on time since 2013, and that
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73
the approved national budget is not consistently available to the

public within 21 days as required by law. The public is woefully
uninformed about the basis for the division of revenue, and
there is minimal, and equally uninformed, discussion of this issue in the media. This has helped to fuel calls for a referendum
to increase funding for counties based on a flawed understanding of the cost of government.
The average citizens engagement with the decision about
the CRA formula has been even more abysmal. At Senate hearings on the formula revisions in February 2015, only three members of the public were present, and it was later clear that the
Senate Finance Committee did not intend to change its recommendations to reflect public comments. Participation in National Assembly budget hearings is somewhat higher, but still limited. At the county level, deadlines for tabling and publication of
key budget documents have been routinely missed, and budget
documents are not consistently made available to the public in
any form.
Both levels of government have pursued modest efforts at
public participation in the budget process through public hearings. However, these efforts are plagued by lack of sufficient
notice, inadequate information and poorly structured meetings
in which citizens are given little time to deliberate. Few counties
have fully operationalized their County Budget and Economic
Forums.
At the budget implementation stage, the Controller of
Budget has raised the profile of spending issues, and, along with
a perhaps surprising fixation on this issue among Senators, this
has put management of resources at county level squarely on the
public agenda, leading to intense discussion about what county
governments are doing with public money. Much of this discus-
74
sion is media-fuelled and is outside of the formal procedures for

dealing with such matters, such as oversight by county assemblies. It constitutes a diffuse and weak form of participation,
and is often poorly informed by media (which is, for example,
unable to distinguish between the Controller of Budget and the
Auditor General), but it is nevertheless a kind of participation
that has increased substantially since 2013. There has also been
an apparent surge in citizen protest over county finance acts
(which set taxes and rates), another form of informal participation. The lack of other structures for engaging with decisionmaking has tended to make street protests the most attractive
option for voicing concerns, though there has also been resort
to the courts, as in Kiambu (where the court held that the county Finance Act was invalid because of lack of participation).
On the matter of equity, the record is also mixed. The first
formula achieved considerable redistribution with a strong focus
on fiscal need. Historically marginalized counties, particularly
those in northern Kenya, were given a massive increase in funding, in some cases more than double what they were estimated
to have received before 2013. This achievement came at a cost,
however, as a number of counties did not receive enough from
the formula to actually maintain their service levels of 2012/13.
The proposal by the National Treasury to hold harmless
counties to ensure that no one actually saw a decline in service
levels was rejected as regressive and anti-devolution, but a core
principle of fairness is that we should, where possible, avoid
making people worse off to make others better off. Holding
harmless does mean less redistribution in the short-term, but to
keep this in perspective, it would have cost about Ksh 20 billion
to achieve in year FY 2013/14, and counties like Turkana and
Mandera would still have received more than double what they
The Values of Money
75
were receiving before. CRA stood firmly against holding harmless, but conversations I organized in 2014 around revenue
sharing indicated that when the issues were properly explained,
many Kenyans actually supported this approach.
The first formula also fell short of other principles of equity, such as those associated with fiscal capacity and fiscal effort.
Fairness demands that those who can do more for themselves
be given less (fiscal capacity) and those who make more of an
effort on their own behalf be rewarded rather than punished
(fiscal effort).CRAs proposed revisions to the formula refine the
definition of fiscal need, but do not address these other principles. These principles are in Article 203 but not in the proposed
formula.
The failure to approve regulations and disburse the Equalisation Fund is also a blot on the equity record of the first years
of devolution. Though a fairly small fund, the figures are not
trivial for areas of the country that are most marginalized. Concerns have also been raised about the decision by CRA to consider the unit of marginalized areas to be counties, ignoring
the possibility of using this fund to target sub-counties or wards.
Indeed, available data suggests vast inequalities at ward level that
are more severe in many cases than inequalities across counties,
themselves substantial. There is thus far no mechanism for dealing with inequality within counties and the preliminary record
of MCAs in this regard is severely deficient: many have opted to
share resources equally across wards in spite of massive inequities in their counties.
There has also been inadequate debate about the equity implications of national government moves to contract more debt.
A cardinal principle of fairness is that debts contracted today
that will be paid in the future must benefit the future generations
76
that will pay off the debt. The requirement in the PFM Act that
debt be for capital investment helps to ensure this, and the current administrations focus on large-scale infrastructure is consistent with this. However, this does not tell us how much debt
is reasonable to leave for our children. That depends on analysis
that has been thoroughly debated in public about the expected
economic benefits of large-scale infrastructure. It remains unclear whether the burden of repaying the debt associated with
the Standard Gauge Railway and other projects will indeed be
balanced by the economic growth and enhanced revenue these
projects generate.
In terms of the values of deliberation, checks and balances,
technical guidance and frequent review, there is no question that
in all these ways we are better off than we were before, when
these decisions were made in the dark and there was no way
to know what basis was used. Today, we do have debate about
these issues in parliament, we have transparent disagreements
between CRA and Treasury, all stakeholders refer to the technical principles in the constitution when arguing their cases, and
we are reviewing the first formula on schedule (though approval
of revisions looks to be delayed). There are also frequent revisions to the national budget that suggest the increasing ability of
parliament to check executive preferences.
Nonetheless, the quality of deliberation is fairly low, and
technical guidance, while often invoked, is not necessarily an effective constraint on action. Various other unresolved matters
suggest that we are not where the constitution wanted us to be.
State corporations control a third of the total national ministerial expenditure, and though a number of them (such as the Kenya Rural Roads Authority, or the Water Service Boards) perform
devolved functions, there has been no reform of these agen-
The Values of Money
77
cies as yet. Parliament is reluctant to part with CDF although

it has been held unconstitutional by the High Court. There has
been precious little reform of the Kenya National Bureau of
Statistics to provide us with the information we need to make
choices about how to share resources in a devolved system. But
the weakest link is public engagement: until the public wakes up
to its role in resource sharing, we can be sure that change will be
slow and halting.
Think about how you manage your personal or household
money: do you have principles about how you decide what
to do with the money in terms of using it wisely, and fairly if
it is for other people as well as yourself ? Do you think these
principles are similar to those that the national and county
governments ought to use in managing public money?
If you were introduced today to your county executive
member responsible for finance, what would you say about
the way county money is being spent?
Have your read your countys budget or any document the
county has put out about the budget?
Why not join together with other people to discuss the
budget and make suggestions? It may be hard for one person, but together you might be able to make a useful contribution.
Have you ever thought of yourself as a taxpayer (you certainly are, even if you do not have to pay income tax for
some reason)? Does that perspective give you a different
way of looking at the way government spends money?
13
Human rights:
Foundations of Kenyas Constitution
Catherine Mumma
To deny people their human rights is to challenge their very humanity

Nelson Mandela
aybe you think that human rights are something

you have heard about only recently, or even think that
they are some western concept that is being forced
Human rights: Foundations of Kenyas Constitution
79
on Kenyans, and by people whose own record in the world, including Kenya, on human rights was not so great. The last point
may have some truth, but human rights are not a new idea, nor
are they forced on Kenyans.
Cyrus the Great, first king of Ancient Persia (Iran), after
conquering the city of Babylon (in modern Iraq) in 539 B.C,
freed the slaves, declared that all people had a right to choose
their religion and established racial equality.
Over the centuries, the idea of human rights has often been
developed in response to tyranny and oppression, whether that
involved slavery, suppression of internal opposition, colonialism, racism and genocide or some other form. It is an expression of the human spirit in resistance to injustice.
Many countries have their own official statements of human rights, often traced to the response to experiences of tyranny, including the French Declaration of Rights of Man and
of the Citizen (1789) (outcome of the Revolution that ended
monarchy), and the US Bill of Rights (1791) (the expression of
rights of people who had mostly fled an intolerant England, and
had recently thrown off that same countrys colonial rule).
During the nineteenth century countries began to work together to end human rights abuses like slavery and the neglect
of wounded soldiers in war, and unfair treatment of workers,
victims of industrialization. The atrocities before and during the
Second World War, and the destruction caused by war, led to the
formation of the United Nations. The UN Charter of the United Nations was signed in 1945 and three years later the General
Assembly adopted the Universal Declaration of Human Rights,
built on the fundamental principle that human rights are based
on the inherent dignity of every person.
80
The struggle for rights and freedoms for Kenya dates back
to early 1900s when the British took control of Kenya and Europeans settled in the fertile highlands, white highlands displacing Africans. The Mau Mau movement was formed to fight
against the colonial rule and many lives of Kenyans were lost
in this struggle for political freedom and for the return of land.
But this was not the only resistance to colonial rule: Kenyans
resisted throughout.
When Kenya achieved independence in 1963, its new constitution included what was at the time a standard set of Fundamental Rights (it was part of the toolkit of the colonial office lawyers who helped negotiate the constitution on the British
side, and was based on the European Convention of Human
Rights drafted in 1950, but with some changes that made it a bit
less protective than the European convention). The British government was keen on including fundamental rights to protect
the remaining settlers.
The rights were summarised by the constitution as life, liberty, security of the person and the protection of the law; freedom of conscience, of expression and of assembly and association; and protection of privacy of his home from having ones
property taken without compensation.
Especially during the one party state, even the few rights
recognised were not protected. Political activists were routinely
detained without trial and tortured for holding divergent views
from the government of the day. Kenyans were often unaware
of their rights, and the main intended protectors of their rights,
the judiciary, was all too often cowed or bribed or otherwise
compromised by the government. At one point, under Moi, the
constitution was changed to make it easier to dismiss judges,
which made it very hard for them to stand up to government.
81
The struggle for a new constitution which led to the

adoption of our current Constitution in 2010 was very much
about rights: of individuals and communities to hold opinions
and beliefs, to express themselves, to play a part in national life,
while respecting their own cultures and ways of life. And about
the democratic rights of the people to choose their government
through fair elections, to organise and to demonstrate. And it
was about human dignity, including equality, positive measures
to address inequality, and about poverty.
Chapter 4 of the Constitution, the Bill of Rights was
carefully drafted to meet the demands placed on it. It includes
right to life (Article 26); equality and freedom from discrimination (Article 27); freedoms of religion and belief (Article 32) of
expression (Article 33) and association, assembly, demonstrating
and petitioning authorities (Article 37), political rights (Art 38)
and fair trial (Article 50). There are less familiar rights such as to
information held by the state (Article 35) and to fair administrative practice (Article 47). The issues that most concern many
Kenyans are found in Article 43 and include the right to the
highest attainable standard of health; accessible and adequate
housing and sanitation; freedom from hunger and adequate
food; clean and safe water; social security and education.
All these rights are closely connected to human dignity,
which is specially recognised in Article 28. And the fact that different groups may have some different concerns is recognised
by specially mentioning the rights of children, of youth, the
elderly, persons with disability and minorities and marginalised
groups (Articles 53-57).
Article 10 speaks of human rights as a value, linked closely to human dignity, equity, social justice, inclusiveness, equality,
non-discrimination and protection of the marginalised. These
82
values must be respected and applied by everyone who is applying the Constitution and the law. Human rights are not in some
separate constitutional box, but must be in the minds of everyone making decisions (from the President deciding whether to
approve a law to the police officer deciding whether to stop a
driver). The executives (national and county), parliament and the
county assemblies, the judiciary and every other state body (including the security forces) have the responsibility to ensure not
just that they do not themselves violate rights, but protect people against violation of rights by others, and if necessary take
positive steps to ensure rights are protected. Some rights require
the state to refrain from doing particular things (like the police
beating up people exercising their right to associate others with
similar views, assemble and march to protest against breaches
of law, or petition parliament). Other rights require the state to
play an active role, like ensuring that all children have education,
families have housing and water, that there are adequate medical
services for all, and protection of their property, and prevent
others from bulldozing their houses. In the case of Article 43
rights, lack of resources may mean that the rights can only be
achieved gradually, but this excuse is very limited (Article 21).
Human rights are not something the government or even
the Constitution graciously give us (that is why we say the Constitution recognises rights). Every person has those rights. They
are part of being human, as Nelson Mandela said. But most
rights can be limited in the public interest, or to respect the
rights of others. A court may have to decide whether a law doing this is reasonable and justified, which includes not restricting
a right more than is needed to achieve a reasonable purpose. It is
a balancing act between rights or between rights and the public
good (Article 24).
83
Finally, we all have to respect the rights of our fellows: the

rights are binding on everyone (Article 20).

Why do you think people sometimes say Human rights are
a Western idea?
Do you feel that human rights are a selfish idea?
Do you feel there is a difference between saying I will kindly give you a meal and You have a right to food?
Would you honestly say you recognise the rights of others,
in your home, your community, your country?
Which of your human rights have you exercised today?
14
Human dignity: Underlying basis
of human rights Part I
Yash Pal Ghai
uman dignity is a central value of the constitution.

There are about 12 references (including in the oaths
of office of major state officers to uphold the dignity
of the people and the dignity of their office). Already the importance of human dignity as the basis of human rights has
been litigated in at least 25 cases, including the first major constitutional case (dealing with eviction of thousands of residents
from Muthurwa by the railway authorities). One reason why it
has been invoked so frequently is the reach of the concept of
human dignity. Human dignity is one of the primary values of
the constitution. It is central to the notion of human rights and
freedoms in general: Article 19 (2) states that these rights exist to preserve the dignity of the individual and communities
and are central to other objectives of rights: the promotion of
social justice and the realisation of the potential of all human
beings.
Human dignity is also central to international and regional
human rights instruments (including the UDHR and two major
covenants on rights). The African Charter on Human and Peoples Rights declares that, Every individual shall have the right
to the respect of the dignity inherent in a human being. Human
dignity appears in many constitutions, starting with the German
Human dignity: Underlying basis of human rights Part I
85
constitution which reads, Human dignity shall be inviolable. To

respect and protect it shall be the duty of all state authority.
Its origin lies in the remorse in Germany at atrocities against
Jews, gypsies and gays. Human dignity is so highly valued that
some courts have read it into constitutions or instruments even
when there is no explicit reference to it in the text (as in Canada,
France and the European Court of Human Rights where considerable jurisprudence has developed on the subject).
Reach and flexibility of human dignity
The right to human dignity appears in two forms. It is used
most frequently as the foundation and basis of human rights,
and often appears in preambles and in the form of general statements. In this form it is used as a guide to the interpretation of
other human rights, to establish the context which gives meaning to them, and to balance competing claims (India and Canada
are examples). In the second form it is a right in itself, justiciable
and enforceable independently (e.g., South Africa and Kenya).
In both contexts human dignity has implications for laws and
policies, and for the exercise of judicial responsibility and discretion.
There is usually no definition of human dignity, nationally or internationally, beyond the notion that it is inherent,
and not owing to the state, and based on self-respect and respect by others. The second element provides the authorities,
particularly the judiciary, considerable flexibility in shaping human dignity to suit local circumstances, particularly in the ways
other human rights or other provisions of the constitution are
defined. Using the discretion that this gives the courts, judges
have decided the following issues with the imperative of hu-
86
man dignity: slavery, discrimination and equality, affirmative

action, participation, working environment, degrading punishment, death penalty, treatment of the mentally retarded, torture,
insults and humiliation, sports which seem cruel to participants
(e.g. dwarf throwing), difficulty of access to basic needs, sexuality, sexual harassment, abortion, medical experiments, right to
fair hearing, privacy, and the meaning of the right to life.
Courts have differed in the priority between the individual
and the community. Countries which enjoy a reasonable standard of living without serious disparities tend to favour the individual (as in traditional liberal theory) but where the social disparities are high or particular communities have been denigrated
or suffered historical injustices, the tendency is also to safeguard
the dignity of the collectivity (as in South Africa). But even in
the former case, considerable value is attached to the collectivity, especially as identity, closely related to dignity, is increasingly
related to membership of a community.
This interpretation arose from or was reinforced by the
consequences of extreme poverty, deprivation and group discrimination in which millions of people live throughout the
world. Individuals cannot realise their full potential, if they do
not have the basic resources to enable them to achieve it and to
respect their dignity. Human dignity is becoming the foundation
for requiring states to provide social, economic and cultural support to individuals and groups.
Human dignity in the Kenya context
The foundation of human dignity in Kenya, apart from
Article 10 (national values and principles) is Article 28: Every
person has inherent dignity and the right to have that dignity
Human dignity: Underlying basis of human rights Part I
87
respected and protected. In addition, various communities, because of their marginalisation and vulnerability, are assured the
protection of their dignity: children, persons with disabilities,
women and minorities and marginalised groups. Just as South
Africans placed a special emphasis on human dignity due to the
discriminatory, insulting, and exploitative treatment of nonwhite people, so too Kenya had a legacy of racism, and with
independence, emergence of tribalism as the basis of favourable or discriminatory treatment, and thus of divisions within
the nation. There also developed huge disparities of wealth and
opportunities due to unequal access to state resources and corruption.
The constitution makers considered that values and policies that emphasised equality, social justice and fair distribution
of resources, integrity, inclusion, participation and respect for
communities and their cultures, particularly of the marginalised
groups, were essential to national integration and eradication of
povertywith the ultimate aim of ensuring all individuals and
communities their human dignity and pride in common citizenship. Nor is it the case that discrimination and exploitation takes
place only in the state sector. For many groups treatment within
society is even more oppressive. In its provisions on land, culture, gender, the disabled, and the application of customary law,
the constitution goes beyond the state sphere and establishes
norms that seek to modify traditional values and practices incompatible with equality, fairness and justice.
The constitution tries to balance many kinds of interests,
among many different entities. Justice is both individual and
group entitlement. The rights of the worker and employer, of
the tenant and the landlord, of the property owner and the
squatter, of men and women, of the rich and privileged and the
88
poor and marginalized must be balanced. The broader context

outlined here must be taken into account when interpreting the
specific provisions of the constitution, giving primacy to the
requisites of human dignity.
The importance attached to the human dignity of individuals and communities is also illustrated by the constitutional rule
that while limitations on some rights can be placed only if they
are reasonable and justiciable in an open and democratic society
based on human dignity (and its related concepts of equality and
freedom). The Constitution requires the courts, in interpreting
the Bill of Rights, to promote the values that underlie an open
and democratic society based on human dignity, equality, equity
and freedom; and the spirit, purport and objects of the Bill of
Rights.
In the next article I discuss how far state and private institutions have respected the injunction to promote human dignity,
with a special emphasis on the role of the judiciary.
Is it true that sometimes culture and tradition did not fully
respect human dignity?
Does dignity lie in ones self-respect, or in the way other
people think of you, or both?
Is poverty necessarily a state without dignity?
Do you feel that the officials and the governments in Kenya
treat people with sufficient dignity?
15
Judicial interpretations of
the right to human dignity Part II
Yash Pal Ghai1
he purpose of recognising and protecting human

rights and fundamental freedoms is to preserve
the dignity of individuals and communities and to
promote social justice and the realisation of the potential of all
human beings. [Justice Mumbi Ngugi in William Musembi v Moi
Education Centre (2014)eKLR]
Justice Ngugis statement captures the spirit of the Constitution: placing the human dignity of individuals and communities at the centre of human rights. As I mentioned in Part I,
human dignity is both a human right in itself and a guide to the
interpretation of other rights. In the Breathalyser (Alcoblow) case
Justice Majanja explained that the right to dignity is an interpretive principle to assist the further explication of the catalogue
of rights and all rights have come to be seen as best interpreted
through the lens of right to dignity. It is not surprising that most
of the cases on human dignity have involved other, substantive
rights; the article on human dignity is stated in the most general
of terms: Every person has inherent dignity and the right to
have that dignity respected and protected. In the Friends of the
Turkana case, Justice Nyamweya stated that it was evident that

The author is grateful to Faith Rotich of the Katiba Institute for her research
assistance.
90
the right to life, dignity and economic and social rights are all
connected and indivisible, and it cannot be said that one set of
rights is more important than another. Perhaps the case where
the largest number of rights were discussed under the rubric of
human dignity is Ibrahim Sangor (an eviction case) where Justice
Muchelule listed among others, freedom from violence, torture
(whether physical or psychological), access to water, sanitation,
health and education, and being treated or punished in a cruel,
inhuman or degrading manner.
When the right to human dignity is recited but not argued,
as for example in the Breathalyser case, where it was merely stated the setting up of road blocks was a violation of dignity, the
court is, not surprisingly, likely to gave short shrift to this plea,
saying in that case that the mere inconvenience of the blocks is
not a violation of a persons right to human dignity.
It is good to see that many individuals and communities
have been seeking the help of the judiciary in the protection of
their dignity and other rights. Already the courts have heard over
40 cases on human dignity.
Issues that have been litigated include: privacy where the
courts have often held the unwarranted disclosure of personal
details without the persons approval (described in one case as
violation of psychological integrity), whether about AIDS/
HIV, surrogate motherhood, or commercial use of anothers
photographs); protection of the dignity of an army officer who
was faithfully carrying out instructions of his superior from
harassment by other higher level officers; discrimination, on account of gender or pregnancy; detention or imprisonment for
failure to fulfil a contract, at least where the person has no means
to pay, including refusal of hospitals to release patients unless
Judicial interpretations of the right to human dignity: Part II
91
the entire bill is paid first; several cases relating to transgender

issues, in particular the right to be recognised as either male or
female, or indeed transgender in state instruments like ID cards
or educational certificates; cases of indigenous communities
anxious to maintain their traditional life styles as maintaining
their beliefs and identity; protection of the rights of the disabled
(particularly to employment), children, and the elderly; availability, implications and scope of DNA testing; and most frequently,
the protection of the many rights of residents and their families
in settlements and other areas threatened by their forced evictions.
Perhaps the most clear case of indignity is the physical humiliation of the person, of which the best example of it is the
Murithi case where the plaintiff was arrested for no lawful reason, handcuffed, took him to hospital without permission or
explanation, forcing him to sit on the floor of a small room,
handcuffing his legs, assaulting him with a syringe to extract
blood, forcing open his mouth and scooping fluid from his
mouth was against freedom from torture, and cruel, inhuman
and degrading treatment, and his private parts were examined to
establish his sex, most of this in the presence of the media and
others. In another case, of the defilement of young girls, Justice
Makau examined the impact on the girls, as having lost their
self-esteem, become self-doubtful, self-loathing, self blaming,
and had low self-esteem. Another court said, Human dignity is
that intangible element that makes a human being complete. It
goes to the heart of human identity. Every human has a value.
Human dignity can be violated through humiliation, degradation
or dehumanisation.
92
Reflections
If these cases are any indication of what goes on in the
country, it depicts a depressing state of affairs. It shows little
sensitivity, on the part of the government or the non-state sector, to or respect for vulnerable individuals and minority communities. It shows even less respect for constitutional values,
particularly on part of state agencies, who love nothing more
than harassing, beating and torturing fellow citizens. In his moving judgment in the Ibrahim case, Justice Muchelule described the
eviction in this way, The Petitioners were evicted from unalienated public land which they had occupied since the 1940s and
on which they had their residences. The eviction was violent
and forceful as the police and the youths were using bulldozers, came in riot gear and used tear gas when the Petitioners
sought to resist these actions. The Petitioners were left without
any alternative place to reside. They were left in the open without any shelter, food, water, sanitary facilities or health care. The
Petitioners were not accorded any opportunity to salvage any of
their property, building materials and household goods before
and after the demolitions. This account is true of many other
evictions, recorded in other judgments, and of course happens
in many contexts that do not reach the courts or the media.
These judgments provide a clear exposition of the law, state
and non-state obligations in respect of projected evictions, the
rights of the residents, and the correct procedures for eviction
(if justified). These and many other judgments are seldom followed, especially where the state is involved. The Attorney-Generals appearances in the cases are rare (and submissions requested by the court are seldom delivered), and even then with little
evidence of preparation, and tendency towards raising technical
Judicial interpretations of the right to human dignity: Part II
93
issues in contravention of the spirit of the Constitution--and

generally defending evictions. Instead his office should be alerting all state and non-state agencies of the law as explained by
the judiciary, and urging compliance with it. And remedies that
the courts give in these and other cases are exceedingly had to
enforce, for which again the Attorney-General must be held responsible.
If the reading of these cases was depressing, it had a bright
side. The bright side was the care with which judges like Justices
Musinga, Ngugi, Majanja, Lenaola, Ogundo, Korir, Muchelule,
Nduma, and Nyanweya have carried out their difficult responsibilitiesdifficult only because of the hostility of the government to the Constitution. The commitment of these judges to
the Constitution is complete, consistence with the heavy responsibilities assigned to them by the Constitution to be its ultimate interpreters and custodians. They explain at length (and
patiently!) the law on the subject, including international norms
binding in Kenya, give evidence of having considered carefully
the arguments of all parties, and always relate their decisions to
the values and the text of the Constitution. They demonstrate
great sensitivity to human rights, and respect for individuals and
communities and their well being, and fairness and social justice
in the national context where disparities of income and opportunities widen by the day. Their judgments are carefully crafted,
the result of considerable research and reflection. In a short period they have developed very good jurisprudence on the constitution (as urged by the CJ Mutunga), which compares well with
judgments from established and well regarded courts as in India
and South Africa.
94

Why do you think the judges have become so important in
implementing the Constitution?
Why do you think it is so hard to get government bodies to
obey the courts?
Have you had any personal experience with the courts, and
do you find that they respect human dignity?
16
Sustainable Development
the Environment, the Future
and the Vision
Waikwa Wanyoike
f you read the Vision 2030 promises and then get on to Thika Road, you get the short term feeling that maybe this Vision 2030 thing can happen and perhaps even sooner than
2030. But that feeling stays with you only for so long, because
soon you start encountering the sad realities of the state of our
country. You notice the sprawling Mathare slums, impromptu
garbage dumps and uncontrolled burning. There are thousands
walking to work not because they have chosen to but because
unemployment and extremely low wages demand it. Because
our government prioritizes buying senior government officers
big petrol guzzling vehicles (sometimes more than one) to drive
them leisurely through the city while the drivers who drive them
and other workers lower in the pecking order walk to work.
It is as if we live in a country where those who make and
execute policy decisions are deficient in any visionary imagination. We do things the same way, over and over again, with little
forethought or questioning about how our decisions today safeguard our interests tomorrow. We make decisions to serve our
immediate and short term egotistical needs.
Our Constitution sets out a number of national values
ideas that we have decided are important to all Kenyans and that
96
we want to be respected by those who are entrusted with governing our country. The one in particular that I wish to discuss
is sustainable development. Sustainable development is a big
idea that summarizes many notions that have been hot topics
in national and international discourse for the past two decades.
Nevertheless, I understand that sustainable development refers
to environmental consciousness, intergenerational fairness and
long term vision.
As a national value, sustainable development is elevated to
an ideal in our society. In our Constitution, it is placed in close
proximity to other values that expand its meaning social justice, transparency and accountability, good governance and human rights. Like other values in Article 10, sustainable development is complemented by these other big ideas, which give it the
necessary traction.
The concept of sustainable development has its origin primarily in the environmental movement of the 1990s and earlier. The conception and the most famous definition of the idea
comes from a 1987 report Our Common Future: development that meets the needs of the present without compromising the ability of future generations to meet their own needs,
and it includes the idea not just of equity as between current
generations and those of the future, but between those alive
today. Its genesis is an effort to resolve some tension between
the need to ensure that mechanisms were put in place to protect
against environmental degradation with the need for development for the benefit of all. Sustainable development demands
that human development is undertaken in a manner that does
not cause irreparable harm to the environment.
Sustainable Development the Environment, the Future and the Vision
97
That this required sustainability of the environment is specifically captured in the Constitution. First, unlike many constitutions, our Constitution makes it a right for everyone to enjoy
a clean and healthy environment. More specifically, Article 69
creates an obligation to respect the environment and requires
the State to ensure sustainable exploitation, utilization, management and conservation of the environment and natural resources and ensure the equitable sharing of the accruing benefits. Noting the importance of environmental sustainability
and not fully trusting the State to honour it, Article 69 actually
obligates every Kenyan to work with the State to protect and
conserve the environment and ensure ecologically sustainable
development and use of natural resources. The Constitution
enables anyone to go to court to challenge any policy or action
that not only violates, but even threatens the right to a clean and
healthy environment.
The Constitution places great emphasis on the need for equity between present and future generations with respect to the
physical environment as well as its natural resources. This recognition that every action taken today will affect the environment
of the future is important because every person, including those
yet to be born, has a right to a clean and healthy environment.
The principle of sustainable development is also extended
to or informed the constitutional provisions that govern public
finance and its expenditure. Our Constitution lays great emphasis on developing a financial system that promotes an equitable
society, including ensuring that public expenditure shall promote
the equitable development of the country; the need to share
burden of and benefits from resources between present and future generations; the need to use public money in a responsible
and prudent manner.
98
The Supreme Court of India has summarized this expanded notion of sustainable development as the responsibility of
the present day society to manage growth and development in
order to preserve the ability of all future generations to breathe
normally, live in a clean environment and have further development. In essence, this means that any policy decision or action
taken on development matters must bear in mind not only how
those alive today but also how future generations will be adversely or positively affected. In the case where a decision will
benefit the current generation, but have a serious adverse impact
on future generations, it would violate the constitutional principle of sustainable development.
Finally, the idea of sustainable development is the long
term vision we crave. It is the imagination to dream of a society
that is committed to the equitable sharing of the fruits of our
valuable natural environment and the protection of its diversity
and uniqueness. Sustainable development presupposes the perseverance to respect a shared long term vision that will benefit
us all and the drive to achieve it. In this regard, sustainable development must be seen to go beyond the environmental and
economic spheres to encompass any aspect of governance that
would threaten the management, stability and survival of continued human development both in the short and long term. In
fact, sustainable development anticipates a holistic approach to
all development issues and actions that are not ad hoc, but well
considered.
It must be remembered that the Constitution is a tool to
manage not only the countrys governance, but also society itself. It is a tool for every citizen, not just judges and lawyers.
Therefore, what can ordinary Kenyans do to promote sustainable development? They can take pride in walking and not creat-
Sustainable Development the Environment, the Future and the Vision
99
ing a carbon footprint on our beautiful country and demand that

those who do offset their damage to the environment with other
contributions. They can use the power of popular will to ensure
that activities that are damaging to the natural resources that
every Kenyan relies on, are frowned upon and actively discouraged, especially amongst the young. And they can strive for and
demand environmental consciousness, intergenerational equity
and long term vision from their leaders even as Kenya speeds
along the development continuum and attempts to both fulfil
those lofty promises of Vision 2030 and to perform their obligations under the Constitution.

What does development mean to you?
Do you think that sustainable development was something
reflected in traditional ideas about the use of land and resources?
Do you think it is right that the needs of future generations
should be taken into account in government policies?
How can politicians be persuaded to think like this?
Do people in Kenya have an attitude of Not in my backyard in other words they dont much care where polluting
activities are carried out so long as they are not affected?
Is pollution a serious problem in Kenya?

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National Values

National Values And Principles

Cover design & Layout by John Agutu

National Values and Principles Under the Constitution

9. The Trial of Integrity in Kenya

Katiba Institute felt that it would be useful to the people of

National Values and Principles Under the Constitution

Kerkering currently lives in Nairobi where he works on issues relating

National Values and Principles Under the Constitution

About this book

National Values and Principles Under the Constitution

The people will be more able to exercise their authority and

here is hardly any constitution in the world that places

National Values and Principles Under the Constitution

Constitutional Conference (meeting at the Bomas of Kenya)

National Values and Principles: Roots of Constitutionalism

ers. Among the people there is little commitment or obedience

National Values and Principles Under the Constitution

public affairs on a continuous basis, not periodically through

National Values and Principles: Roots of Constitutionalism

bilities. For example, it explains the principles of the electoral

National Values and Principles Under the Constitution

must be made on the basis of personal integrity, competence

National Values and Principles: Roots of Constitutionalism

major problem facing Kenyas constitution makers was

National Identity and Respect for Diversity: Foundations of the State

National Values and Principles Under the Constitution

National Identity and Respect for Diversity: Foundations of the State

they govern the mandate and conduct of different institutions

National Values and Principles Under the Constitution

many provisions for the protection of minorities and bringing

he eighteenth century essayist Samuel Johnson famously

National Values and Principles Under the Constitution

A second, equally powerful, reason relates to the countrys

National Values and Principles Under the Constitution

Things to think about

s part of the second liberation therefore, there has

Constitution and Culture: Being a Kenyan

Hence, in the half-century that followed independence, it

National Values and Principles Under the Constitution

ated a mind-set that froze culture in the race/ethnicity moulds

Constitution and Culture: Being a Kenyan

not contentious. The CoE made concessions on two grounds.

National Values and Principles Under the Constitution

made by a people in the sphere of thought to describe, justify,

Things to think about?

rticle 8 of the Kenyan Constitution states briefly but

National Values and Principles Under the Constitution

Secularism and Religion

The notion of secularism originated in France where it

National Values and Principles Under the Constitution

in Paris in an apparent revenge assault on the satirical magazine

Secularism and Religion

There is a great hesitation by law enforcement officials in

National Values and Principles Under the Constitution

Secularism and Religion

Democracy: The primary constitutional value

delegated their powers (principally legislatures, executives and

National Values and Principles Under the Constitution

and provides strong mechanisms to ensure that state institutions

Democracy: The primary constitutional value

National Values and Principles Under the Constitution