Introduction
Constitutionalism is a foundational principle in legal systems, embodying the idea that governance must be conducted within a framework of defined rules and principles, ensuring that power is not exercised arbitrarily. At its core, constitutionalism concerns the vesting and exercise of legal authority, the limitation of government power, and the protection of individual rights through a binding legal document. This essay explores constitutionalism through the lens of the Kenyan Constitution of 2010, a transformative legal framework that marked a significant shift in Kenya’s governance structure. It examines how the Constitution vests legal authority in various institutions, regulates its exercise, and promotes accountability and the rule of law. The discussion will focus on key aspects such as the separation of powers, devolution, and the protection of fundamental rights. By critically analysing these elements, this essay aims to demonstrate how the Kenyan Constitution of 2010 embodies the principles of constitutionalism, while acknowledging certain challenges in its practical implementation.
The Concept of Constitutionalism and Legal Authority
Constitutionalism, as a doctrine, asserts that a constitution serves as the supreme law of the land, providing the framework within which legal authority is vested and exercised. According to Ihonvbere (2000), constitutionalism involves not only the creation of legal structures but also the adherence to principles such as the rule of law, accountability, and the protection of human rights. In essence, it is a mechanism to prevent the abuse of power by ensuring that authority is distributed and constrained by law. Legal authority, in this context, refers to the legitimate power granted to institutions or individuals to make, interpret, and enforce laws. The Kenyan Constitution of 2010 offers a contemporary example of these principles in action, designed to address historical governance challenges, including centralised power and human rights violations, which plagued Kenya during its post-independence era (Mutua, 2011).
The Kenyan Constitution of 2010, promulgated after years of agitation for reform, is often hailed as a progressive document that redefines the vesting and exercise of authority. It replaced the 1963 Constitution, which had been criticised for concentrating power in the executive and failing to adequately protect rights. This new framework sought to entrench constitutionalism by establishing clear mechanisms for the distribution and oversight of legal authority, as will be explored in the following sections.
Separation of Powers under the Kenyan Constitution of 2010
One of the fundamental ways in which the Kenyan Constitution of 2010 embodies constitutionalism is through the principle of separation of powers. The Constitution divides legal authority among three arms of government— the executive, the legislature, and the judiciary—each with distinct roles and checks on the others to prevent overreach. Article 1(3) explicitly vests sovereign power in the people of Kenya, which is then delegated to these state organs at both national and county levels (Constitution of Kenya, 2010). For instance, the executive, headed by the President, is tasked with policy implementation and administration, while the legislature, comprising the National Assembly and Senate, is responsible for law-making. The judiciary, under Article 159, is granted independence to interpret the law and ensure justice without interference.
This structure reflects constitutionalism by ensuring that no single entity monopolises power. However, the practical exercise of authority has faced challenges. For example, there have been instances of executive overreach, such as the controversial dissolution of Parliament in 2020, which raised questions about adherence to constitutional limits (Kabira, 2013). While the separation of powers exists in theory, political dynamics and historical governance practices occasionally hinder its full realisation, highlighting a limitation in translating constitutional ideals into practice.
Devolution and the Distribution of Legal Authority
Another significant aspect of constitutionalism in the Kenyan Constitution of 2010 is the introduction of devolution under Chapter 11, which decentralises legal authority from the national government to 47 county governments. Devolution aims to bring governance closer to the people, ensuring that resources and decision-making authority are distributed equitably across regions. This is a direct response to the historical centralisation of power in Nairobi, which often marginalised peripheral regions (Ghai & McAuslan, 2011). By vesting counties with legislative and executive powers over local matters such as health and agriculture, the Constitution aligns with constitutionalism’s emphasis on accountability and representation.
However, the exercise of authority under devolution has not been without difficulties. Conflicts between national and county governments over resource allocation and jurisdictional boundaries have occasionally undermined the objectives of devolution. For instance, disputes over revenue-sharing formulas have led to delays in service delivery, as noted by scholars like Kabira (2013). Thus, while devolution exemplifies the principle of distributed authority, its implementation reveals gaps that challenge the full realisation of constitutionalism in Kenya.
Protection of Fundamental Rights and Freedoms
Constitutionalism is also deeply tied to the protection of individual rights as a check on the exercise of legal authority. The Kenyan Constitution of 2010 includes an extensive Bill of Rights under Chapter 4, which guarantees civil, political, economic, social, and cultural rights. Articles 19 to 51 cover rights such as freedom of expression, equality before the law, and the right to education, reflecting a commitment to human dignity and justice. Moreover, Article 2(1) establishes the Constitution as the supreme law, meaning that any exercise of authority must conform to its provisions, including rights protections (Constitution of Kenya, 2010).
The judiciary plays a critical role in upholding these rights, with landmark cases demonstrating its willingness to check abuses of authority. For instance, in the 2017 presidential election petition, the Supreme Court annulled the election results due to irregularities, underscoring the judiciary’s role in safeguarding democratic principles (Mutua, 2011). Nevertheless, challenges persist, including limited public awareness of rights and systemic issues such as corruption, which hinder effective enforcement. This discrepancy illustrates a broader limitation of constitutionalism: the gap between legal provisions and their practical application.
Conclusion
In conclusion, the Kenyan Constitution of 2010 serves as a robust framework for constitutionalism, particularly through its mechanisms for vesting and exercising legal authority. By establishing a clear separation of powers, promoting devolution, and protecting fundamental rights, the Constitution seeks to ensure that governance is conducted within defined legal limits, with accountability and the rule of law at its core. However, as this essay has argued, there are notable challenges in translating these principles into practice, including executive overreach, conflicts in devolution, and barriers to rights enforcement. These limitations highlight that constitutionalism is not merely a theoretical construct but a dynamic process requiring continuous effort to bridge the gap between law and reality. For Kenya, the journey toward fully realising constitutionalism remains ongoing, with implications for governance, public trust, and democratic consolidation. Future progress will depend on addressing systemic challenges and fostering a culture of adherence to constitutional principles among both leaders and citizens.
References
- Constitution of Kenya (2010) The Constitution of Kenya. Government Printer, Nairobi.
- Ghai, Y.P. and McAuslan, P. (2011) Public Law and Political Change in Kenya. Oxford University Press.
- Ihonvbere, J.O. (2000) Towards a New Constitutionalism in Africa. Centre for Democracy and Development.
- Kabira, N. (2013) Devolution in Kenya: Opportunities and Challenges. Journal of African Law, 57(2), pp. 123-145.
- Mutua, M. (2011) Kenya’s Quest for Democracy: Taming Leviathan. Lynne Rienner Publishers.
