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9 - Political Elites and the People

Kenya’s Decade-Long Constitution-Making Process

from Part II - Case Studies

Published online by Cambridge University Press:  29 August 2020

By
Christina Murray
Edited by
Gabriel L. Negretto
Gabriel L. Negretto
Affiliation:
Pontificia Universidad Catolica de Chile
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Summary

Kenya adopted a new constitution in 2010 after a long and difficult journey. It was the result of two processes, involving different bodies, different decision-making rules, and each under significantly different political conditions. This chapter describes these linked processes, exploring why the first failed and the second led to the adoption of a new constitution. There is, of course, no simple or single answer to this question but, as the chapter shows, a central difference between them was the different ways in which they dealt with elites and ordinary citizens. In short, insisting on a "people-driven" process and failing to secure elite buy-in was fatal for the first process; requiring consensus among the elite, along with a degree of public involvement, was key to bringing the second process to a successful conclusion.

Keywords

Kenyaconstitution-making processes2010 constitutiondemocracyelite buy-inpopular participation
Type
Chapter
Information
Redrafting Constitutions in Democratic Regimes
Theoretical and Comparative Perspectives
 , pp. 190 - 216
Publisher: Cambridge University Press
Print publication year: 2020

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References

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Constitution of Kenya Review Act, Act 13 of 1997, as amended by Act 6 of 1998, Act 5 of 2000 and Act 2 of 2001. (Review Act, 1997).Google Scholar
Constitution of Kenya Review Act, Act 9 of 2008, as amended by Act 6 of 2009 and Act 9 of 2009. (Review Act, 2008).Google Scholar
Constitution of Kenya Review Commission. 2002. The People’s Choice: The Report of the Constitution of Kenya Review Commission (Short Version). Nairobi, Kenya.Google Scholar
Jesse Kamau & Others v. The Attorney General & Another. 2004. Nairobi High Court Misc. Application No. 890 of 2004.Google Scholar
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Mwau & 2 others v Independent Electoral and Boundaries Commission & 3 others. 2017. Supreme Court, Nairobi, Presidential Election Petition 2 & 4 of 2017: November 20, 2017.Google Scholar
Njoya and Others v Attorney-General and others [2004] LLR 4788 (HCK).Google Scholar
Njuguna Michael Kung’u, Gacuru wa Karenge & Nichasius Mugo v The Republic, Attorney General and CKRC, Kenya High Court Misc. Application No. 309 of 2004.Google Scholar
Raila Amolo Odinga & another v Independent Electoral and Boundaries Commission & 4 others & Attorney General & another. 2017. Supreme Court, Nairobi, Presidential Election Petition 1 of 2017: September 20, 2017.Google Scholar
Report of the Committee of Eminent Persons. 2006. Nairobi: Government Printer. (Kiplagat Report).Google Scholar
Report of the Commission of Inquiry into Post-Election Violence. 2008. Nairobi: Government Printer. (Waki Report).Google Scholar
Report of the Independent Review Commission on the General Elections Held in Kenya on 27 December, 2007. 2008. Nairobi: Nairobi: Government Printer. (Kriegler Report).Google Scholar

Official Documents and Laws

1963 Constitution of Kenya. Nairobi: Government Printer.Google Scholar
Alice Waithera Mwaura & 12 others v Committee of Experts & 2 others. 2010. Interim Independent Constitutional Dispute Resolution Court at K.I.C.C. Nairobi, Constitutional Petition No. 7 of 2010.Google Scholar
Andrew Omtata Okoiti & 5 others v Attorney General and 2 others. 2010. Interim Independent Constitutional Dispute Resolution Court at K.I.C.C. Nairobi, Constitutional Petition No. 3 of 2010.Google Scholar
Committee of Experts on Constitutional Review. 2009. “Harmonized Draft Constitution of Kenya Published on 17th November, 2009 by the Committee of Experts on Constitutional Review Pursuant to Section 32(1)(a)(i) of the Constitution of Kenya Review Act, 2008.” Nairobi, Kenya: Committee of Experts.Google Scholar
Committee of Experts on Constitutional Review. 2010. “Final Report of the Committee of Experts on Constitutional Review.” Nairobi, Kenya: Committee of Experts.Google Scholar
Constitution of Kenya Review Act, Act 13 of 1997, as amended by Act 6 of 1998, Act 5 of 2000 and Act 2 of 2001. (Review Act, 1997).Google Scholar
Constitution of Kenya Review Act, Act 9 of 2008, as amended by Act 6 of 2009 and Act 9 of 2009. (Review Act, 2008).Google Scholar
Constitution of Kenya Review Commission. 2002. The People’s Choice: The Report of the Constitution of Kenya Review Commission (Short Version). Nairobi, Kenya.Google Scholar
Jesse Kamau & Others v. The Attorney General & Another. 2004. Nairobi High Court Misc. Application No. 890 of 2004.Google Scholar
Joseph Kimani & 2 others v Attorney General & 2 others. 2010. Interim Independent Constitutional Dispute Resolution Court at K.I.C.C. Nairobi, Constitutional Petition No. 3 of 2010.Google Scholar
Kenya National Dialogue and Reconciliation. 2008. Annotated Agenda and Timetable. Nairobi, Kenya. https://peacemaker.un.org/sites/peacemaker.un.org/files/KE_080101_Annotated%20Agenda%20for%20the%20Kenya%20Dialogue%20and%20Reconciliation.pdf.Google Scholar
Kesavananda Bharathi Sripandanagalavaru v State of Kerala [1973] Supp. India SCR 1.Google Scholar
Mary Arivisa Mwami & another v Interim Independent Electoral Commission & 3 others. 2010. Interim Independent Constitutional Dispute Resolution Court at K.I.C.C. Nairobi, Constitutional Petition No. 7 of 2010.Google Scholar
Mwau & 2 others v Independent Electoral and Boundaries Commission & 3 others. 2017. Supreme Court, Nairobi, Presidential Election Petition 2 & 4 of 2017: November 20, 2017.Google Scholar
Njoya and Others v Attorney-General and others [2004] LLR 4788 (HCK).Google Scholar
Njuguna Michael Kung’u, Gacuru wa Karenge & Nichasius Mugo v The Republic, Attorney General and CKRC, Kenya High Court Misc. Application No. 309 of 2004.Google Scholar
Raila Amolo Odinga & another v Independent Electoral and Boundaries Commission & 4 others & Attorney General & another. 2017. Supreme Court, Nairobi, Presidential Election Petition 1 of 2017: September 20, 2017.Google Scholar
Report of the Committee of Eminent Persons. 2006. Nairobi: Government Printer. (Kiplagat Report).Google Scholar
Report of the Commission of Inquiry into Post-Election Violence. 2008. Nairobi: Government Printer. (Waki Report).Google Scholar
Report of the Independent Review Commission on the General Elections Held in Kenya on 27 December, 2007. 2008. Nairobi: Nairobi: Government Printer. (Kriegler Report).Google Scholar

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