The process that produced Kenya's 2010 Constitution was one of the longest and most contentious constitutional reform struggles in African history, spanning two decades of political agitation, failed attempts, and eventual triumph. From the pro-democracy movements of the early 1990s through the 2010 referendum, constitutional reform became the central battleground of Kenyan politics - a vehicle through which competing visions of state power, ethnic accommodation, land justice, and democratic governance were debated and ultimately resolved.
The demand for constitutional reform emerged from the multiparty struggles of the late 1980s and early 1990s. Activists like Wangari Maathai, lawyers, clergymen, and opposition politicians who had fought against KANU's single-party monopoly recognised that simply permitting multiple parties was insufficient without restructuring the constitutional framework that concentrated enormous power in the presidency. The Saba Saba protests of 1990 and the subsequent legalisation of multiparty politics in 1991 had achieved formal democratic competition, but the existing constitution - amended over forty times since independence to enhance presidential authority - still permitted the kind of authoritarian governance practised during the Daniel arap Moi Era.
The reform process gained institutional form with the establishment of the Constitution of Kenya Review Commission (CKRC) in 2000, chaired by Professor Yash Pal Ghai. The CKRC undertook an unprecedented nationwide consultation, collecting views from over 37,000 Kenyans through public hearings in all 210 constituencies. This participatory process gave ordinary citizens a direct voice in constitutional design and generated an extraordinary archive of popular grievances and aspirations - from land rights and ethnic discrimination to demands for devolution and gender equality.
The CKRC's work culminated in the National Constitutional Conference at the Bomas of Kenya in 2003-2004. The "Bomas Draft" proposed a parliamentary system with an executive prime minister, extensive devolution, a reformed land governance framework, and an expanded Bill of Rights. However, the draft threatened the interests of President Mwai Kibaki and his allies, who favoured retaining a strong presidency. The government's attorney general, Amos Wako, produced a revised draft - the "Wako Draft" - that significantly diluted devolution and retained a powerful presidency.
The Wako Draft was put to a national referendum on 21 November 2005, and its decisive rejection - 57 percent voted "No" - represented a watershed moment. The "No" campaign, symbolised by an orange (in contrast to the "Yes" campaign's banana), was led by Raila Odinga and the Liberal Democratic Party faction of the fractured NARC coalition. The referendum defeat humiliated Kibaki's government and effectively ended the first phase of the reform process, while creating the political alignments that culminated in the traumatic 2007-2008 Post Election Violence.
The post-election violence of 2007-2008, which killed over 1,100 people and displaced 600,000, provided the terrible impetus for renewed constitutional reform. The African Union-mediated power-sharing agreement that ended the crisis, brokered by Kofi Annan, included constitutional reform as a central agenda item. A Committee of Experts (CoE), co-chaired by Nzamba Kitonga and supported by international constitutional advisors, was appointed to produce a new draft drawing on the extensive consultations already conducted.
The Committee of Experts navigated contentious issues including land reform, devolution architecture, the structure of the executive, the status of Kadhi courts, and abortion - each touching deep nerves in Kenyan society. The CoE produced a Proposed Constitution that was reviewed by a Parliamentary Select Committee and refined through additional public consultation. Key compromises included retaining a presidential system (rather than the parliamentary model preferred by some reformers) while creating the Senate and 47 county governments to satisfy devolution demands; establishing the National Land Commission to address land grievances; and including Kadhi courts as a compromise between Muslim and Christian constituencies.
The referendum on 4 August 2010 approved the new constitution with 67 percent support in a peaceful, well-administered vote that demonstrated Kenyans' capacity for democratic decision-making. The result was celebrated across the political spectrum - President Kibaki and Prime Minister Raila Odinga, bitter rivals in 2007, both campaigned for "Yes" - and internationally hailed as a transformative moment for Kenyan democracy. The promulgated Constitution entered force on 27 August 2010, inaugurating a new constitutional order whose implementation would test Kenya's institutions and political culture for years to come.
See Also
- 2010 Constitution
- Kenya Constitution 2010
- Multiparty Politics
- Saba Saba 1990
- 2007-2008 Post Election Violence
- Devolution Kenya
- National Rainbow Coalition (NARC)
Sources
- Ghai, Yash Pal. "Decreeing and Establishing a Constitutional Order: Challenges Facing Kenya." East African Journal of Peace and Human Rights 14, no. 1 (2008): 1-52.
- Cottrell, Jill and Yash Ghai. "Constitution Making and Democratization in Kenya (2000-2005)." Democratization 14, no. 1 (2007): 1-25.
- Mutunga, Willy. Constitution-Making from the Middle: Civil Society and Transition Politics in Kenya, 1992-1997. Nairobi: SAREAT, 1999.
- Kramon, Eric and Daniel N. Posner. "Kenya's New Constitution." Journal of Democracy 22, no. 2 (2011): 89-103.