There is near consensus among observers that the Constitution of Kenya 2010 was intended to be a transformative, even revolutionary, governance document for Kenya. This transformation was intended to take the form of new institutions.
Offices, separation and dispersal of power and authority and empowering of the citizens as sovereigns, not merely as subjects. A decade and a half after its promulgation, the extent of this transformation may be worthy of a probe.
While the executive and legislature had to await an election for the structural changes in them to commence, the reform of the Judiciary started almost immediately within the time-frame for the completion of the constitutional reform.
The Judges and Magistrates then serving in the judiciary had to undergo a vetting as to their suitability to continue serving in their offices, and not least, a new court was established at the apex of the Judiciary in the form of the Supreme Court and whose Judges were largely persons who had not served within the judiciary as it existed in the old constitutional order. The overhaul was intended to be complete, direct and quick.
While many may see this as a very unfair treatment of the Judiciary relative to the other branches of government, the framers of this method may take pride that it appears to have worked. This rather rough treatment imbued the Judiciary with the true meaning of that catharsis: That the promulgation of the constitution was intended to herald a new Kenya, from governance structures changing the governors to public servants, from authorities and Forces to service and the reverse for the citizen, from subject to the sovereign.
The message was clear that, despite vacillation with international treaties by the other arms of Government, the Courts would help Kenya live up to its obligations under international law.
An example here is that the right to demonstrate and protest against public authorities now sits at the centre of an inalienable right by the courts, and the attempts by the executive and the legislature to truncate them have been declared unconstitutional. Thus, today, the right of citizens to peacefully protest while unarmed forms a cornerstone of civic engagement by the citizen despite unease by the executive, the police, no less.
By doing this, the courts have brought to life the essence of public participation as a right for the citizens and an obligation for public servants to reckon with Kenyans' views and perspectives in the development plans, policies and even legislation.
The legislature and the executive have been called offside the constitutional requirement whenever they tried to exercise power and authority with spite of the citizens’ input. Thanks to the courts, it is by recognition of public participation that the Citizen now has a voice in determining the direction of the country, albeit incrementally.
This is just what a Chief Justice did when parliament failed to implement, among others, a law requiring gender equality within elective public offices. Once again, it is the other branches of government that blinked when then president decided not to act on that recommendation.
But a second reason for the clarity of purpose on the need to protect and uphold constitutionalism within the republic is that which we started with. That is, the Judiciary was the one whose reform and reconstruction were in lock step with the Constitution. The result of this treatment has therefore seen itself as a product of the constitution and appreciated better, I think, the need to keep the values and principles of the constitution alive within the Nation.
