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Judicial intervention in Kenya's constitutional review process.

3. The "Political Question" Doctrine

As a theory of interpretive deference, the political question doctrine demands that a court decline to exercise jurisdiction on a dispute that it is either ill-equipped to deal with or where the political organ may render the best possible resolution. The doctrine has its origins in U.S. constitutional jurisprudence, which largely recognises--although in many instances this is contestable--that there are certain matters that are better left to the other organs of government to decide rather than the courts. (215) While advocating for judicial modesty, Chief Justice Marshall, a strong proponent of judicial review, argued that powers of judicial review were not without limits. (216) "Questions, in their nature political," he wrote, "or which are, by the constitution and laws, submitted to the executive can never be made in this court." (217) According to Chief Justice Marshall, there were questions or issues over which political organs had the power and discretion to decide, and these fell outside the constitutional competence of the court. (218) Such issues would fall under one of the following categories: those matters with political subject matter; those that concern the nation and not the individual; and those areas in which the constitution vests the political organs with discretion. (219) This reasoning was based on his understanding of the distribution of powers by the Constitution, which delineated the respective competence of organs of government. Therefore, when political organs made judgment on matters of policy which fell within their competence, they were fulfilling their constitutional obligations. He believed that although the judiciary had power to say what the law is, it was not the only branch with such a power. (220) Indeed, if such a division of power did not exist, then some functions would end up being swallowed by the judiciary. (221)

We have taken time to analyze Chief Justice Marshall's postulation so as to show that the classical version of the doctrine had constitutional underpinnings. Undoubtedly, the classical version of the doctrine traces its pedigree to the Constitution of the United States itself. (222) That is why those who may be skeptical of the doctrine's relevance to judicial review may take solace in its limitation when fundamental rights and individual freedoms are at stake. Moreover, the U.S. Supreme Court has refined the doctrine leaning towards limiting blanket deference on political grounds. (223) Unlike other courts of similar stature, the U.S. Supreme Court chooses its cases and therefore has wide latitude to decline jurisdiction on the basis of the political question doctrine. This discretion, however, has often created doubt as to whether the doctrine in its maiden formulation would be readily applicable in other judicial systems. In Kenya, for example, the High Court (which technically is also the constitutional court) exercises both original and appellate jurisdiction in all matters. (224) As a result, if the court chooses to decline jurisdiction on any basis, the avenues for litigating constitutional questions may be constricted.

The question is whether political organs in Kenya can really be trusted to determine the meaning and scope of a constitutional provision in a climate of political incongruity. Perhaps the best way to examine this issue is to consider the criteria that US courts have adopted and compare it with the Kenyan position. The U.S. Supreme Court set the criteria in Baker v. Cart (225) in the following terms:

Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question. (226)

Professor Jesse H. Choper, of Berkeley Law School, breaks down the criteria for limiting the application of the doctrine set in Baker into four considerations. (227) First, courts should not exercise jurisdiction where there is a textual commitment to a coordinate government department, that is, where the constitution expressly confers the authority to a branch of government. (228) Second, courts should not intervene in circumstances where judicial review may not be necessary for preserving the Constitution or its values. (229) Here, Choper has in mind issues of institutional competence and human rights. In his view, courts may reduce "discord between judicial review and majoritarian democracy" when they abstain from deciding issues where political branches may produce sound constitutional decisions. (230) Indeed, this may enhance the court's ability in the future "to render enforceable decisions when their participation is vitally needed." (231) Third, a court should not attempt to adjudicate issues where its opinion hinges on no coherent tests or formulations because of "lack of judicially discoverable and manageable standards." (232) This criteria is extremely important for the courts own assessment of its capacity to assist the parties by developing appropriate constitutional standards to guide litigation. Also, it is important for creating some kind of consistency in constitutional litigation. The test, according to Choper, is whether a particular standard is "constitutionally warranted[,] ... desirable, and sufficiently principled to guide the lower courts and constrain all jurists from inserting their own ideological beliefs in ad hoc, unreasoned ways." (233) The fourth criterion, which is Choper's own, is that when the court is convinced that the constitutional injury suffered is "general and widely shared," it should decline jurisdiction. (234)

The respondents in Patrick Ouma Onyango had invited the court to consider the political nature of the constitution-making process and to find that questions on the referendum, constituent assembly, and content of the draft Constitution fell within the competence of other constitutional organs and not the court. The court agreed with this view:

The argument that certain objectives were not attained in managing the process is a matter this court would be unable to judicially enforce at this stage since the collection of views, the framing of proposals has already taken place and the question whether or not the objectives were met is largely a political question .... [T]he process leading up to the publication of the proposed new Constitution is in our judgement non-unjusticiable ... due to the political nature of the process .... (235)

In this respect, the court agreed with the dissenting opinion of Justice Kubo in Njoya. (236) In that case too, the judge had observed that the process of collating views and assembling proposals was political, and therefore the court was "not equipped to adjudicate on this part of the process under the political doctrine principle since it is also not justiciable ...." (237)

Both courts failed to distil the actual criteria that it used to determine whether particular questions were of a political nature and thus incapable of being adjudicated. Had the court in Patrick Ouma done this, this area of the law in Kenya could have been developed in the later cases. Yet, there were weighty constitutional issues involved. Could the very fact that Parliament had established a mechanism for collating views of the public and drafting a proposed constitution insulate the process from judicial inquiry if the applicant's right was allegedly violated? If the court held the view was that it lacked capacity to make an assessment of the process, then it should have articulated more clearly the role of the Constitution in creating a framework for reform, so as to put in context its inability to exercise its powers of judicial review in this regard.

4. Mootness and Ripeness

The applicants in Patrick Ouma contended that the imposition of security for costs of KSh 5 million was a violation of their right of access to court. (238) They also contended that about 56% of Kenyans were living below the poverty line and that this clause would deny them the right to approach the court. (239) In the court's view, the matter was not ripe for adjudication because the referendum, which would trigger the application of Section 28 B (4), had not occurred yet. (240) The court held that "the right or interest must be in existence now for it to be infringed or threatened with infringement under [Section] 70 of the Constitution." (241)

This unsound reasoning was not backed by any constitutional reference or facts. How could the matter be unripe when it was a provision in a statute that was already in force? Moreover, the applicants had alleged that the provision infringed on their right as enshrined in the Constitution. This necessarily should have triggered judicial review and the court ought to have made a Finding on the constitutionality of the provision. The argument that any decision on the matter would amount to giving an "advisory opinion" is in our view untenable.

III. PHASE III OF THE CONSTITUTIONAL REFORM PROCESS: THE WAKO DRAFT--A SHORTCUT TO HELL

Upon failure of Parliament to ratify the Bomas Draft, the government quickly mobilized its supporters to impose the task of rewriting the law on parliament. (242) This was mainly to save face because it was now evident to many Kenyans that the government was stalling the process of implementing a new constitution. Amid accusations of high level corruption implicating the ministers who vehemently opposed the draft constitution, it was obvious that the government had a hidden agenda. (243) In November 2005, Attorney General Amos Wako hurriedly prepared a new draft constitution without any consultations. (244) This new draft, called the Wako Draft, represented the right-wing views of the powerful political elite at the corridors of power. (245) Unlike the Bomas Draft, it concentrated executive power in the presidency and removed all the other systems of checks and balances on presidential power that the Bomas Draft had put in place. (246) It also preferred a strong central government in place of the decentralized system that the Bomas Draft had provided, which had come out of the lengthy stakeholder consultations and the public forums. (247) In essence, the Wako Draft was a manifestation of a blatant elitist usurpation of the power vested in the people. It was not at all surprising that the Wako Draft was rejected by the people in a referendum held later that month. (248) The LDP of Raila Odinga and elements of KANU teamed up to oppose the Wako Draft, which was heavily supported by the NAK party of president Kibaki. The Wako Draft's downfall was mainly associated with it being seen as representing the interests of the Mt. Kenya region (the GEMA alliance of ethnic groups). (249)

In many ways, the unwitting intervention by Wako killed the constitutional review process. Its first casualty, of course, was Professor Ghai, who resigned amid speculation that the government did not support his continued stay. (250) The idea had been to remove any possibility of leadership devolving of the grassroots and to maintain an all powerful presidency. The fear of majimbo (regionalism) by the Kikuyu oligarchs, had prompted the government to write the Constitution and neglect the more transparent Bomas process. (251) Undoubtedly, the Njoya court had danced to this tune by rubbishing the achievements of the Ghai Commission and the National Constitutional Conference. (252) In many ways, this same agenda was to be replicated in the cases that followed it, such as Jesse Kamau. (253) But with Kenyans expressing their wishes in the referendum and the Commission's term having expired, the lopsided presidency, perhaps blinded by the quest for wealth, was consigned to a state of torpor.

IV. THE ROAD TO VICTORY: LEGISLATION DEFINING THE REFORM PROCESS AND PROMULGATION OF THE NEW CONSTITUTION

The momentum gained after the Njoya and Onyango cases somewhat dissipated in the acrimony and competition generated by the campaigns before the referendum. And its outcome polarized the political field even more. However, two major events conspired to provide the final push towards the enactment of a new constitution. The first was the parliamentary and presidential election that came in December 2007 and its violent aftermath. The second was the rise of Raila Odinga, the opposition kingpin, to the position of Prime Minister. His rise to power also meant the inclusion into government of a cohort of reformists such as James Orengo and Otieno Kajwang, the radical lawyers who had made constitutional reform their major preoccupation since the Moi days. In this part, therefore, we discuss the milestones in the constitutional reform journey that were orchestrated directly or indirectly by these two events. Unfortunately, this period also witnessed some of the most pathetic court interventions that could have stymied the process except for the strong winds of change orchestrated by the politics of the day. Our analysis begins with the elections and the establishment of the coalition government. Indeed, it was the legal architecture of the founding instruments of the coalition government that was to shape the reform agenda after 2008. Thereafter, we examine some of the legislative interventions and the institutional arrangements that coalition momentum brought on board. We also interrogate how disputes that ended up in the courts were resolved in light of the changed political and legislative environment. Lastly, we explain how the courts became irrelevant in the final efforts to stitch the draft constitution together and in the organisation and holding of the referendum of August 4, 2010.

A. Phase IV of the Constitution Reform Process: Resuscitating the Stalled Process Through Legislation

Kenyans went to the polls in December 2007 to elect a new president and members of Parliament. In the race up to the elections, the various opposition figures, spirited by their success in the constitutional referendum, regrouped under Raila Odinga's Orange Democratic Movement ("ODM") and mounted a serious campaign to remove Kibaki from power. This coalition appeared to enjoy the majority support because they provided an acceptable alternative to the weak, ethnic-based, and corrupt government of Kibaki. Already, there had been a marked shift in citizens' perception of the Kibaki government. Unlike in 2002, when the majority of Kenyans had enthusiastically embraced the democratic call to replace the Moi government, a general feeling of frustration was evident. The ODM seized this opportunity to popularize their manifesto, in which they outlined their plans to introduce Majimbo as a means to curb the exercises of a powerful central government, (254) fight corruption, and complete the constitutional reform process that had virtually ground to a halt. (255)

In a poll that was heavily rigged, Kibaki declared himself the winner and was secretly sworn in at night. (256) With the exception of Kibaki's Kikuyu supporters, Kenyans were enraged. Violence erupted spontaneously across the country; by the time the dust settled, roughly 1000 people had lost their lives and tens of thousands were displaced. (257) The negotiations to end the violence, led by Kofi Annan and a team of prominent personalities, resulted in the signing of the Agreement on Principles of Partnership of the Coalition Government between the principals, Raila Odinga and Mwai Kibaki, on February 28, 2008. (258)

Otherwise referred to as the "National Accord," the agreement established a coalition government and laid down a framework for further negotiations to deal with institutional and political problems that had resulted in the violence. Four main areas meriting attention were identified: (1) the need to stop the violence and restore fundamental rights; (2) a coordinated response to deal with humanitarian crises, especially the resettlement of the Internally displaced persons; (3) the resolution of the political crisis; and (4) the resolution of long standing issues such as constitutional review, legal reform, and land reform. (259) Within the framework of National Dialogue and Reconciliation Committee, three commissions were created: (1) the Independent Review Commission on 2007 Elections ("IREC"); (2) the Commission on Enquiry on Post Election Violence ("CIPEV"); and (3) a Truth Justice and Reconciliation Commission ("TJRC"). (260) Immediately, Parliament began its sessions, the "National Accord" was enacted into law, (261) and the Constitution was amended to establish a coalition government. That same Amendment also created the Office of the Prime Minister as well as the two offices for the Deputy Prime Ministers. (262)

1. Legislative Intervention

Kenya arrived in the year 2008 without any legislative or institutional framework for constitutional review. The Constitution of Kenya Review Act, enacted in 1997 and amended several times, had run its course. (263) The Commission it had created had become moribund, with nothing to show for the fanfare, political wrangling, violence, and amount of tax payer money spent on it. Its proposals and drafts were no more than pieces of paper good for the archives. If nothing else, the constitutional review process in Kenya had showed just how true it is that the more things change, the more they remain the same.

The coalition government, keen to show its commitment to constitutional reform, had to rise above its political constraints and sharp divisions that had characterized its inception. Putting the reform back on track, however, required more than just a political consensus on the contentious procedural issues that had plagued the process from the very beginning. Strategic intervention was needed to address three major areas of concern, namely, an acceptable articulation of the role of parliament vis-a-vis that of the people, the entrenchment of the reform process in the Constitution, and the establishment of institutions to be responsible for managing the reform process.

It was imperative to implement a scheme of legislative amendments to reboot the process and put it firmly on course. (264) This approach occurred in two fronts. The first front consisted of a series of amendments to the existing Constitution. These were largely aimed at entrenching the reform process, establishing constitutionally mandated organs to facilitate reform process (such as the Interim Electoral Commission), and the creation of institutions that would facilitate political cohesion in the post-election period. (265) The second front aimed at establishing a pinnacle reform organ to spearhead the process; one that would replace the Constitutional Review Commission of Kenya whose tenure had elapsed. A review statute was enacted to set procedures for the establishment of such organ and outline its functions. (266)

a. Constitution of Kenya (Amendment) Act 2008

From the day when the constitutional review was initiated and the runaway Ufungamano group was invited to join the Ghai Commission, the issue of the entrenchment of the process in the Constitution had been constantly debated. There were fears that without a firm constitutional base the process would be susceptible to manipulation by the all-powerful presidency. (267) As we have shown, these fears were not unfounded. The Moi and Kibaki regimes have both been guilty of manipulating the process to achieve political gains. The entrenchment of the reform process in the Constitution took the form of the amendment of Section 47 of the Constitution and the inclusion of the referendum process in the Constitution. The Constitution also provided for strict time frames within which the new document would be officially promulgated into law once the reform process had taken its course. All these changes were effected through a series of amendments beginning in March 2008.

i. Amendment of Section 47 of the Constitution

On March 18, 2008, members of parliament passed the Constitution of Kenya (Amendment) Bill 2008 by a unanimous vote. (268) This was the first of the two most important constitutional amendment bills that Parliament passed in that year. (269) This amendment entrenched the Office of the Prime Minister. The second amendment was passed in December 2008. (270) That amendment brought relief to the controversy surrounding the authority of Parliament in constitution making, a subject which occupied much of the deliberations in the Njoya and Patrick Ouma cases. This new amendment mainly affected Section 47 of the Constitution. Previously, the section had set out methods of amendment and provided that parliament had powers to "alter" the Constitution. The Constitution then went on to define alteration as "amendment, modification, or re-enactment, with or without amendment or modification, of any provision of this Constitution, the suspension or repeal of that provision and the making of a different provision in the place of that provision." (271) Justice Ringera in Njoya held the view that the power to amend in Section 47 of the Constitution did not entitle parliament to completely replace the old Constitution with a new one. He stated:

I have come to the unequivocal conclusion that Parliament had no power under the provisions of Section 47 of the Constitution to abrogate the Constitution and/or enact a new one in its place. I have come to that conclusion on three premises: First, a textual appreciation of the pertinent provisions alone compels that conclusion. The dominant word is "alter" the Constitution .... Secondly, I have elsewhere in this judgement found that the constituent power is reposed in the people by virtue of their sovereignty and that the hallmark thereof is the power to constitute or reconstitute the framework of Government, in other words, make a new Constitution .... Thirdly, the application of the doctrine of purposive interpretation of the Constitution leads to the same result. (272)

The judge had associated himself with the remarks of Justice Khanna of the Supreme Court of India who had asserted in Kesavananda v. State of Kerala (273) that amendment inferred changes to the Constitution and not complete abrogation. "Amendment," he said, "postulates that the old Constitution survives without loss of identity despite the change .... As a result of the amendment, the old Constitution cannot be destroyed or done away with; it is retained though in the amended form." (274) Any supposition that Parliament could, by virtue of Section 47, enact a new Constitution was therefore a nullity. The judge reasoned that the Act offended Section 47 of the Constitution by giving jurisdiction to Parliament to do what it did not have power to do, namely "to consider a Bill for the abrogation of the Constitution and the enactment of a new one," and by "tak[ing] away the constitutional discretion of Parliament to accept or reject a Bill to alter the Constitution." (275) He then proceeded to strike out Section 28 (4) of the Constitution of Kenya Review Act, which had given Parliament the power to enact the bill into law within seven days, as being ultra vires the constitution.

The dissenting opinion of Justice Kubo disagreed with this reasoning. In his view, Sections 28(3) and (4) of the Act merely affirmed the legislative power that Parliament has to exercise by virtue of Section 30 of the Constitution. Therefore, the fact alone that Section 28(4) talked of "enactment" of the bill from the Bomas process does not in itself amount to the usurpation of the people's right to make a Constitution. (276) This in our view reflects a more tenable position. Although there are obvious flaws in Ringera's reasoning, it reignited the debates on entrenchment of the review process that had been mooted in the 1990s but consistently ignored by the Moi regime. (277) Nonetheless, his judgment more or less gave expression to the wishes of the government by way of judicial pronouncement. We must admit, however, that his ideas were very persuasive, as both sides of the political divide made them a part of their rhetoric in the subsequent period.

In Patrick Ouma, the court had been invited to stop the referendum because Parliament had acted unconstitutionally by purporting to enact a new Constitution through a referendum and thereby ignoring the Bomas Draft. (278) It was argued that for a new Constitution to be enacted in this way, Section 47 of the Constitution must be amended to give Parliament such powers. The court rejected this argument outright. It affirmed its concurrence with Njoya, asserting that Section 47 merely conferred the power to amend an existing Constitution and that the power to enact a new Constitution resided on the people. (279) However, this power could be exercised in a number of ways not necessarily through the amendment of Section 47. (280) The court then proceeded to give examples from other countries. Curiously, the court also suggested that there would be nothing unconstitutional if Parliament initiated the process. (281) And even though Parliament had been the "originator and facilitator" of the new Act, the new referendum process through which the Wako Draft was to be put was valid because it took into account the holding in Njoya case. (282)

One could conclude therefore that the two cases gave conflicting views on whether the amendment of Section 47 was crucial to constitution making. Indeed, if the role of Parliament was merely that of an initiator and facilitator of the process as observed by Justice Nyamu, and not necessarily the usurper of the so called "constituent power of the people," then the process should be validated on account of the general power to exercise legislative authority granted under Section 60 of the Constitution as opposed to Section 47 of the same.

The coalition government, aware of the judicial rigmaroles and the inability of courts to offer consistent opinions on proper pathways for constitution making, decided to prevent any future contests on the authority of Parliament by enacting an amendment to Section 47. (283) The amendment entrenched the role of Parliament in constitution making and the requirement for a referendum. Parliament now had the power to debate a draft proposal and make alterations, but only if such alteration is supported by 65% of all members. The debate must occur within thirty days, after which the proposal together with the approved amendments must be submitted to the Attorney General. It wasn't clear what the Attorney General should do with the proposed amendments, other than consider them. Other than that, the Attorney General was then required to publish the Draft Constitution in the Kenya Gazette. (284) And after publication, the Electoral Commission had ninety days to hold a referendum. (285) The draft would be ratified if 50% of the votes cast were valid and at least 25% of votes cast in at least five of the eight provinces supported the draft. (286) If ratified, the President had to publish the text of the draft Constitution in the Gazette within 14 days, and thereafter, the new Constitution would become law. (287) Undoubtedly, the amendment set a very high threshold for ratification of the draft law.

ii. Interim Independent Constitution Dispute Resolution Court ("IICDRC")

The IICDRC was established by the Constitution of Kenya (Amendment) Act, which became law on December 29, 2008. (288) The amendment introduced Section 60A, which created an interim constitutional court to deal with disputes arising out of the review process. The effect of this amendment was to create an alternative court to deal with matters which in the ordinary interpretation of Section 60 of the Constitution would fall within the competence of the High Court. The disputes arising out of the review process would ordinarily relate to constitutional interpretation. The power to interpret the Constitution is directly conferred upon the High Court by the Constitution; this raised the questions as to whether the amendment contravened the Constitution.

Did Parliament have the power to create such a court? The issues such as appointment of judges and security of tenure, which are crucial for ensuring judicial independence and impartiality, were not sufficiently addressed by the Act. Moreover, the decisions of IICDRC were not appealable, (289) thus affording no opportunity for contesting its decisions in mainstream courts. One scholar argued therefore that the IICDRC was a politician's court, established to protect their interest. (290) In his view, the idea of having a court/tribunal outside the "system" was an affront to democracy. He deplored the "outrageous philosophy" embedded in the amendment which inferred that the people of Kenya and their judges were "second rate human beings with no ability to handle disputes which arise in the course of making the constitution." (291) A similar argument could be made with respect to another amendment proposed in early 2009, which inserted a new Section 3A to the Constitution. (292) The amendment gave Parliament the power to "establish a special tribunal with exclusive jurisdiction ... to investigate, prosecute and determine cases of genocide, gross violation of human rights and crimes against humanity" committed in the period immediately after the 2007 elections. (293)

The judges to the interim court were appointed in January 2010 and immediately began to hear cases. (294) Some of their rulings went a long way to facilitate the reform process. For example, the court affirmed the right of prisoners to vote in the referendum in Priscilla Nyokabi Kanyua v. Attorney General. (295) The petitioner, who acted on behalf of prisoners at Shimo La Tewa prison, brought the action seeking orders allowing prisoners to vote in the referendum. She argued that Section 43 of the Constitution merely forbade prisoners from voting in a general election and not a referendum. The respondents opposed this application on the grounds of lack of standing and jurisdiction. They argued that the procedure for dealing with registration disputes as set out in the National Assembly and Presidential Elections Act was through the registration officers and not the court. The court allowed the petition. It found its jurisdiction on the basis of Section 60A of the Constitution and the fact that the matter was a dispute arising out of the review process. Second, the court was of the view that its mandate was to interpret the Constitution in conformity with the principle of substantial justice. Furthermore, it found that the referendum was different from a general election and that there was no legitimate government purpose that would be served by denying the respondents the right to vote.

iii. Interim Independent Electoral Commission ("IIEC")

The bungling of the 2007 elections greatly damaged the credibility of the Electoral Commission of Kenya ("ECK"). (296) One thing that the government and the opposition parties agreed upon was that the commission needed to be disbanded. But this was not going to be an easy thing to do because of lingering political loyalties, legal technicalities, and the instability in the coalition arrangements. (297) Indeed, the removal of the commissioner seemed to portend a political nightmare for the coalition government, especially for President Kibaki, whose claim of victory was approved by these same persons. Some of the commissioners had come out openly to blame their colleagues for compromising the elections. (298) They claimed that they had done no wrong and should therefore not be victimized. Second, the procedure for removal of commissioners as set out in Section 41 was far too elaborate and was almost certain to generate significant infighting among coalition partners. (299) Thus, by amending Section 41 of the Constitution, the government seemed to have achieved their goal without risking too much political capital. (300) The amendment took the form of replacing the ECK with two temporary commissions: the Interim Independent Electoral Commission ("IIEC") and Independent Boundaries Review Commission ("IBRC"). (301)

The task of the commission was to "reform the electoral process and the management of elections and to institutionalize free and fair elections." (302) It had a lifespan of only two years--up to December 2010. (303) By then, it was hoped, a new constitution shall have been promulgated. The commission had a chairman and eight commissioners appointed in May 2009 by the President in consultations with the PSC. (304)

b. Constitution of Kenya Review Act 2008

The Constitution of Kenya Review Act 2008 established a new roadmap for the constitutional review process. (305) It effectively repealed the Constitution of Kenya Review Act of 1997 and its subsequent amendments, and thereby abolishing the institutions that it had created. Although these institutions had become moribund in themselves in the period after 2006, the symbolism of failure could haunt any new organs created in their semblance. Therefore, the Act took a complete new path in creating reform institutions and outlining procedures for transition. The institutions are set out in Section 5 of the Act: the Committee of Experts, the Parliamentary Select Committee on Review of the Constitution, and the National Assembly and the Referendum. The greater part of the Act set out how the organs were to interact with one another in the process of generating a new law.

Apart from assigning functions to these organs, it also established timeframes within which those functions were to be completed. For example, the Committee of Experts ("CoE") was required to complete its work within twelve months of the commencement of the Act; (306) the National Assembly was required to debate the draft and approve or disapprove within fifteen days; (307) the Attorney General had thirty days to publish the draft constitution after receiving it from parliament; (308) the Electoral Commission had to publish referendum questions within seven days after publication of the draft law by the Attorney General; (309) and the Electoral Commission was required to publish the result of referendum within two days. (310) These strict timeframes were meant to ensure that there was no delay once the process begins.

The Act also contained provisions to ensure the independence of the organs. For example, a member of the CoE could not be removed from office for any reason other than death, resignation, and misbehavior or misconduct. (311) In the latter case, the complaint against the member required investigation by the PSCCR and recommendations made to the president. (312) The PSC, in the conduct of their inquiry, had to afford the members an opportunity to be heard. (313) Section 16 expressly prohibited any person or authority from interfering with the work of the CoE. In addition, the Third Schedule to the Act, which was drawn pursuant to Section 20 of the Act, created a code of conduct for members. Thus, it forbade them from conducting themselves in a way that would compromise their independence and impartiality. As far as finances are concerned, Section 52 guaranteed funding for CoE by charging all their expenses to the consolidated fund. The Act also created the Constitution of Kenya Review Fund to be managed by the Director and to be financed from the consolidated fund and any gifts or donations received on behalf of the CoE. (314)

i. Parliamentary Select Committee on Constitutional Review ("PSCCR")

The National Assembly, by virtue of Section 7 of the Constitution of Kenya Review Act 2008, was mandated to set a select committee of its members, known as the "Parliamentary Committee on Constitutional Review," to assist the Assembly in discharging its functions. This committee would consist of twenty-seven members and would ensure regional and gender balance in its composition. The committee was constituted through a resolution passed by parliament on December 17, 2008. (315) The committee's tasks included: (1) the appointment of members of the Committee of Experts, (2) the appointment of judges of the Interim Independent Constitutional Dispute Resolution Court, and (3) receiving and presenting before parliament the draft constitution prepared by the Committee of Experts. (316)

ii. Committee of Experts ("CoE")

The CoE was set up under Section 8 of the Constitution of Kenya Review Act 2008. It was to be the main technical organ of the reform process. In a manner of speaking, the CoE replaced the Constitutional Review Commission of Kenya. (317) According to Section 8(2) of the Act, the CoE was to be a "body corporate with a secretariat headed by a Director." It would comprise of nine members, six of which were to be Kenyan citizens and three foreigners. The Attorney General and the Director sat on the CoE as ex-officio members. According to the Act, the CoE's functions were to identify contentious issues in the existing draft constitutions, solicit public views, carry out studies and initiate consultations with the view to resolve contentious issues, prepare a harmonized draft of the constitution, make recommendations to the PSCR, facilitate civic education, and liaise with the Electoral Commission in conducting the referendum. (318) The President formally appointed members to the CoE on February 23, 2009, (319) and the CoE held the first session on March 2, 2009. (320)

iii. The Referendum

According to the Act, the referendum was to be held fourteen days after publication of the referendum question, prepared in consultation with the PSCR and the CoE. (321) Since the question must be published within fourteen days of the publication of the draft Constitution by the Attorney General, this would only allow for twenty-eight days of civic education and campaigns by opposing sides. Upon announcing the outcome of the referendum, the reform would revert back to parliament and the executive to formally promulgate the new law and complete the transition from the old order to a new one. Section 44, however, provided that "the conduct or result of the referendum" could be challenged in High Court through a petition. Such petition must be brought within fourteen days of the publication of the results. (322) Also, the petitioners were required to issue a seven days' notice to the commission and to deposit KSh 2 million as security for costs. This provision was meant to give the public a final chance to rectify any misconduct in the process of making the new law. (323)

B. Judicial Response to Legislative Intervention

Soon after the passing of the Constitution of Kenya Amendment Act 2008, a group of clergy led by Bishop Joseph Methu filed a petition in court challenging the role of parliament in amending the draft constitutions, and the conduct of the referendum by the Electoral Commission of Kenya. (324) The group also sought a conservatory order suspending the implementation of the Act until Parliament had enacted the rules of procedure for the interim independent Constitutional Court. (325) In a ruling delivered on October 2, 2009, the court declined to give the orders sought. (326) But this position was soon to be tested in court. In Bishop J. Kimani v. Attorney General, (327) the petitioners brought suit against the Attorney General and the CoE under Section 84 of the Constitution claiming breaches of their constitutional rights. (328) The basis of their claim was that both parliament and the CoE had failed to define what amounted to contentious issues in the review process. (329) They also claimed that the procedure set by the Act, including its timeframes for publication of the new constitution and public debate, could not be attained due to the illiteracy of the majority of Kenyans. (330) The petitioners were also unhappy with certain provisions in the Act, including Sections 30-34 relating to the national discussions and approval by PSCCR, and asked the court to declare these provisions null and void. (331)

A preliminary objection was raised by the Attorney General on the ground that the High Court had no jurisdiction to hear the matter since the dispute arose out of the constitutional review process. (332) Such matters, he averred, should be placed before the IICDRC. He argued that Section 60A expressly ousted the jurisdiction of the court. The court rejected this argument on the basis of the public policy argument that had founded jurisdiction for most constitutional challenges to the review process. (333) In its view, the matter carried a potential ramification that would affect the whole nation. The court also observed that the IICDRC had not been established and, therefore, to deny the petitioners access to the court would mean disregarding their inalienable rights. (334) Moreover, since the IICDRC did not exist, the jurisdiction of the High Court under Section 60 of the Constitution was alive and unfettered.

The court's ruling was important in two ways. First, it gave some sort of legitimacy to the legislative arrangements that had been put in place to ensure that the reform process was carried to its conclusion and that the political leaders were eager to deliver a new constitution. Second, the court's intervention on the side of public opinion was remarkable because it created a rather opaque notion that the reform agenda had finally mustered the approval of a wider section of society than was probably the case before the 2008 post-election mayhem. The political forces--galvanized by the delicate support from external forces and reeling from the experiences of violence that ushered the second Kibaki regime--were thus poised to deliver a new constitution to Kenyans no matter the very unhappy alliance of the institutions that had been created to foster the process. Given these circumstances, the role of the judiciary (notwithstanding its ruling in Bishop J Kimani) could be regarded as merely salutary, since the die had been cast.

C. How the Reform Process Unfolded After 2008

In this section, we discuss how the COE went about its work. We also discuss some of the key disputes that arose, how the court resolved them and the impact they had on the overall process of constitutional reform. It may be worthwhile to remember, that the institutional framework for review having been entrenched in the constitution through the Constitution of Kenya (Amendment)Act of 2008, there was really very little room left for the courts to maneuver, even with very intense political pressure being brought to bear upon them by politicians who were still keen to derail the process.

1. Dealing with Contentious Issues

After all the legislative and institutional organs were put in place, attention shifted to the CoE. Section 23 of the Constitution of Kenya Review Act 2008 had mandated the CoE to prepare a memorandum of what it considered to be the contentious issues. This was to create some form of continuity from the earlier reform processes to the new, and also provide a platform for producing a constitution that would be acceptable to Kenyans. The reasoning seems to have been that it was these contentious issues that had frustrated the efforts to produce a new constitution. In preparing this memorandum, the CoE considered the many reports generated by the reform process thus far, and the existing drafts of the constitution. (335) It also called on the public to submit their views. (336)

Out of this process, three main issues were isolated: systems of government (the role of the executive and legislature), devolution, and transitional issues. As for the system of government, the CoE identified the disagreement as arising from the question as to whether Kenya should adopt a presidential, parliamentary, or a hybrid system. (337) The two main parties, Party of National Unity ("PNU") and Orange Democratic Movement ("ODM"), adopted different positions with regard to this issue: PNU supported a strong presidential system while ODM rooted for a purely parliamentary system with an executive prime minister. (338) Differences also emerged as to whether Kenya should have two houses of parliament. On the issue of devolution, the CoE identified the point of disagreement as the levels of government to be created and the powers to be invested in them. The question of devolution has a long history in Kenya beginning with the majimbo debate of the pre-independence days. (339) In the face of the constitutional reform process, however, the debate had come full circle with the proponents of devolution highlighting the ills of central governance and calling for the establishment of regional autonomy to ensure equitable distribution of resources. (340) The CoE also identified the challenge of creating a proper and acceptable mechanism of replacing the old constitution with a new one, and it recognized that the transitional arrangements had been the bane of the earlier reform attempts. (341) Apart from these three main issues, calls had been made to the CoE to consider the whether Kadhis Courts should be entrenched in the constitution.

After collecting views from the public and making consultations, the Committee was expected put in place a mechanism for resolving the contentious issues. The process was expected to yield a harmonized draft constitution that would be placed before the PSC for approval. The CoE was able to accomplish this task within five months. On November 17, 2009, it published the harmonized draft and again invited the public to comment on it as was required by Section 30(1) of the Review Act. (342) In this draft, a hybrid system was proposed in which the President (though elected through universal suffrage) would remain largely ceremonial, except for being the commander-in-chief of the armed forces, appointing the cabinet (with approval of Parliament), appointing High Commissioners and ambassadors, and the powers to declare a state of emergency. (343) The Prime Minister on the other hand was to be the head of government, (344) elected from the party or a coalition of parties with the majority members of Parliament. (345) The interface between the exercise of presidential powers and those of the Prime Minister was not elaborated, given that the existing coalition arrangement at the time functioned on completely different terms. It was not clear from the draft whether it was the intention of the CoE to retain the existing arrangement with small modifications to remedy the obvious weaknesses.

With regard to the legislature, the draft proposed radical changes that would see Kenya adopt a bicameral parliamentary system. (346) It established the National Assembly and the Senate. It was envisaged that two electoral zones would be created: the counties and the constituencies. The senators would come from the counties, with "each county assembly acting as an electoral college," while members of the National Assembly would represent the existing constituencies. Both houses had to approve a bill before it would become law, except in cases of money bills or those certified as such by the speaker. (347)

The draft also introduced a devolved government in which regional and county governments were established. (348) The idea of "cooperative government" was thus introduced in which a shared function among the three levels--county, regional, and national government--would define management of state affairs. Each county and region would have a government, complete with an assembly and an executive committee. (349) The regions were to be headed by a director and deputy director, while the counties were to be headed by a governor and deputy governor. (350)

The harmonized draft was presented to the Parliamentary Select Committee on the Review of the Constitution in early January 2010, as was mandated by Section 32(1)(c) of the Review Act 2008. In the month-long deliberations in the tourist town of Naivasha, members of the CoE debated the draft with the hope of reaching an agreement." (351) Nonetheless, the perennial issues of contention still resurfaced and, in some instances, even threatened to derail the whole process. For example, the issue of abortion drew a lot of interest from the Christian churches, who even threatened to mobilize their adherents against the draft law. (352) Similarly contentious was the entrenchment of the Kadhi's courts in the draft. (353) Here too, the Christian churches protested and, as we shall later discuss, the matter even ended up in court. Other matters such as the land question, protection of rights of the disabled persons, (354) and judicial reforms, drew all manner of reactions from the civil society and particular interest groups, all of them asking for reconsideration of the harmonized draft constitution.

It was the political jostling between the rival camps of Kibaki (PNU) and Odinga (ODM) that took center stage. A whole host of issues stood between the two groups, key among them were the Office of the Prime Minister and devolution. The Kibaki faction insisted that the proposal by the CoE to introduce the Office of Prime Minister would create two centers of power, which would impede political governance. (355) The Odinga group, on the other hand, rooted for a parliamentary system supported by a devolved system of administration. (356) Interestingly, the stalemate generated by these differences was diffused abruptly when the Odinga group resolved to concede to the demands of the Kibaki faction, which then paved way for the enactment of the Constitution. (357) Effectively, it meant that the hybrid system that had been proposed in the draft was deflated and the Office of the Prime Minister removed. (358) The imperial presidency that had been the cause of many problems in the country was retained. (359) The devolution agenda was also amended to remove regional levels and retain the counties. (360)

It must be said that the proposals by the PSC infuriated a large section of Kenyan society. (361) Many ODM sympathizers felt cheated and completely outmaneuvered because the main selling point for its campaign had been the removal of the provincial administration and replacement with a representative regional authority. (362) Moreover, the involvement of Parliament in the reform processes had been very contentious from the beginning. (363) Above all, Kenyans had become very suspicious of their parliamentarians and expressed anger at what was seen as the usurpation of the constituent power of the people to make the constitution. (364)

Despite the general discontent, the opposition groups and the civil society, fatigued by the review rigmaroles, succumbed to the pressure of the need to deliver a new constitution. It was a question of choosing to accept the gains, however little, rather than being satisfied with the alterations and revisions that PSC had proposed. In the end, the negotiated proposals were reduced into a report which PSC submitted to the CoE at the end of January 2010. (365) This report necessitated a redrafting of the draft constitution and its subsequent submission to Parliament for final debate. The draft was passed on April 1, 2010 and was submitted to the Attorney General for publication on April 7, 2010. (366)

After the publication of the draft law, a number of issues arose that threatened to derail the process. From our point of view, some of these issues were political machinations driven by claims to power based on ethnic regrouping. The tragedy, however, was that the judiciary partially succumbed to some of these claims thereby threatening the review process itself. It became clear after the publication of the draft that some sections of politicians who had hoped to isolate ODM and its leader Odinga from being a major player in the constitutional reform process had not quite succeeded when the ODM leader abandoned his initial position on systems of government and devolution. (367) By Odinga supporting the draft law in the form that PNU had proposed, his opponents had been caught flatfooted. (368) It seemed that ODM and PNU were going to the referendum with one voice. This naturally gave Odinga more clout than his adversaries wanted him to have. Cracks immediately began to emerge on the political caucus that supported the draft, and some prominent anti-ODM politicians began to question whether the draft law was suited for Kenyans. (369) Those who had supported the PSC review process and signed on its report turned around overnight to demonize the same recommendations. (370) As the IIEC was busy preparing itself for the referendum, some of those opposed to the process reverted to judicial action, while others began to fan ethnic sentiments in support of their political ambitions. (371)

2. The Judiciary Response to the New Draft

Of interest to us is how the judiciary reacted to these developments given its propensity to align itself with powerful ethnic interests. As usual, it did not disappoint. The following discussion illustrates how judicial intervention in the period before the referendum failed to articulate one voice and thereby squandered the chance to provide guidance on the process of reform.

Judicial challenge to the reform process at this time came in two forms. The first was through the High Court, with parties pitching their opposition to the process on religious grounds. The second was through the IICDRC, and the challenges were based on the unconstitutionality of the whole process and procedural defects. In our view both these challenges, although judicial in nature, represented the vested interests of constituencies that foresaw the weakening of their position in the new dispensation. In addition there were growing fears within the civil society body politik that the reform agenda had been completely captured by political forces, and this did not augur well for the common citizens. It was these fears that the judiciary had to negotiate to ensure that the reform process did not collapse.

a. The Unconstitutionality of the Constitution: The Jesse Kamau Case

This was a bizarre decision, the importance of which can only be understood within the context of the on-going reform process and the political climate prevailing in the period just before the referendum. Jesse Kamau v. Attorney General (372) was filed on July 12, 2004, around the same time that the Njoya case was in court, and the hearing did not begin until two years later. (373) However, the judgment was to be delivered four years later on May 24, 2010. Before the hearing, the application was amended several times to accommodate the changing circumstances, given the rather lengthy gestation period. One of the respondents, the Constitution of Kenya Review Commission, had since become defunct. (374) Like the Njoya case, the applicants in the Jesse Kamau case were all leaders of various Christian churches in Kenya. The case was a spinoff from the NCC approval of the draft constitution which occurred on March 12, 2004. The applicants represented the Christian groups that had vehemently opposed the retention of the Kadhi's Courts in the new Constitution. The delegates at the conference had voted overwhelmingly in favor of such inclusion. (375)

The applicants claimed that the entrenchment of the Kadhi's Courts in Section 66 of the Constitution amounted to a violation of their right not to be discriminated upon and also denied them the right to equal protection of the law guaranteed under Sections 70, 78, 79, 80 and 82 of the Constitution. (376) In this regard they claimed that Section 66 was inconsistent with Section 82 of the same Constitution. Second, they contested the constitutionality of the Kadhi's Courts Act, (377) alleging that its application throughout the country contravened the Constitution and that the continued state funding of such courts amounted to discrimination against other religious establishments. (378) They sought orders striking down the Act. Third, they argued that the intended adoption of similar provisions, those entrenching the Kadhi's Courts in the draft constitution, also amounted to discrimination. (379) Fourth, the applicants sought orders stopping the constitutional review process until the issues of contention were fully resolved by the court. (380)

The applicants based their application on a rather curious ground--that the Kadhi's Courts were religious courts and therefore their elevation in the Constitution amounted to the promotion of one religion as against the others. The applicants alleged that the introduction of the Kadhi's Courts was part of a grand scheme to introduce Sharia law in Kenya and convert all Kenyans to Islam. (381) The applicants were thus arrogating to themselves the divine right to protect Kenyans from this "evil" plan of the Muslim community and were asking the court to support them. (382) They also raised a more substantive argument regarding separation of powers. In this regard, they claimed that by entrenching Kadhis' Courts which were primarily a religious institution, section 66 of the Constitution had contradicted the principle of separation of church and state. (383) The applicants' efforts to enlist the Hindus' support were largely unsuccessful, except for a brief letter that the Hindu Council of Kenya sent to the court that was annexed to one of the affidavits filed in support of the application. (384)

The claims in Jesse Kamau were opposed on similar grounds as the Njoya and Patrick Ouma cases, namely: the applicants lacked standing; the claim was moot as the draft law had not been enacted; and the matter was not justiciable, as the issue of Kadhis' Courts lay within the competence of the executive and legislature and not the courts. (385) The respondents also contended that the court lacked jurisdiction to strike out a constitutional provision for being ultra vires of another provision in the same constitution. (386) The applicants had submitted that that in view of the Supremacy Clause in Section 3, the court could exercise this jurisdiction and declare Section 66 (which establishes the Kadhis' Courts) unconstitutional. (387) They had submitted that the effect of Section 66 was to "entrench one religious community's dogma" and thereby deny the other religious groups a similar right. (388) In their view, this amounted to a violation of their rights under Section 82 of the Constitution. (389)

The court agreed with this contention and found that Section 66 was indeed inconsistent with Section 82; however, it declined to declare Section 66 void on the grounds that it did not have jurisdiction to do so. (390) The court observed that, whereas the applicants had the right to come to court to contest Section 66, "the supremacy of the Constitution ... is over any other law, and not any provision of the Constitution itself." (391) In the court's view, the power to declare void any other law inconsistent with the Constitution was expressly limited to such other law. Regarding the inclusion of the Kadhis' courts in the draft law, the court found the applicants claims to be "moot and speculative" and non-justiciable. (392) Despite the foregoing, the court still found the section to be discriminatory against the applicants. With a scant and very unimpressive analysis of foreign law and practices, it found the establishment of the Kadhis' courts through the Constitution and the related financial support of these courts to amount to segregation and to be "sectarian, discriminatory and unjust as against the applicants and others." (393) It declared relevant sections of the Kadhis' Act to be unconstitutional and the inclusion of religious courts as part of the judiciary to be offensive to the principle of separation of state and religion. (394) The Court pegged its finding on a rather problematic understanding of what a secular state should be. In its view, Kenya was a secular state because it was a "sovereign state" and had a "multiparty democracy." (395) This analysis depicts a rather shallow appreciation of the complexity of secularism. In the end, the Court declined to order the amendment of section 66 of the constitution because its powers were "limited interpretation and constitutional review but not alteration of the constitution." (396)

It is this holding that attracted substantial criticism from Kenyan lawyers and politicians, particularly because of the timing of the ruling as it came barely two months before the referendum. Just before the court made its ruling, the Christian churches had loudly announced that they would vote against the draft law in the referendum because of its inclusion of the Kadhi's courts, among others. (397) Politicians opposed to the draft law sided with the churches and began to emphasize this fact in their campaigns. (398) When the ruling was made, a majority of Kenyans saw this as the courts' veiled attempt to frustrate the reform process. (399) There were also speculations that the judges were probably unhappy with the draft law because, if passed, they would have to be vetted before being reappointed. (400)

The Attorney General, for his part, immediately filed an appeal against the ruling. (401) Professor Makau Mutua, the Dean of Buffalo Law School, writing in a local periodical, described the ruling as a "blatant act of judicial skulduggery" and a "quixotic attempt to derail the referendum." (402) In his view, the judges had abandoned their hallowed duty of interpreting the law and were now usurping the functions of the legislature, and that they were doing so in the most "unseemly manner'--that of declaring the constitution "unconstitutional." (403) In all his predictions, Makau saw the judges as using the law to kill the intended referendum, but that such approach was bound to fail. His views were echoed by a wide spectrum of commentators and lawyers. The Prime Minister, Raila Odinga was even more blatant in his reaction. He termed it "a most unfortunate ruling and mischievous at that." (404) In his view, the judges were taking political sides by supporting those opposed to the new constitution being approved by the public.

The mischief that was seen in the court's intervention did not stop the arrangements for the referendum. As if the court did not matter, the IIEC proceeded to frame the referendum question and prepare for the national voting process. Meanwhile, another suit that had been filed by a different set of Christian clergy at the High Court in Kenya's resort city of Mombasa, raising the same issues, also concluded. Bishop Joseph Kimani v. Attorney General, (405) was filed on December 18, 2009, just about the same time that the CoE submitted the harmonized draft to the PSC for debate. Unfortunately for the applicants here, the judge dismissed their claim on the grounds that the court "lacked jurisdiction to question and interpret the constitutionality of the constitution itself." (406) The judge, on declining to follow Jesse Kamau and in direct reference to its effect on the review process, observed: "On what basis can I as a judge interpret or construe that Section 60 is superior to Section 60A and therefore assume jurisdiction over matters or disputes touching on the review process?" (407) In his view, the role of the court was to defend the existing constitution until a new one was promulgated. This decision received wide coverage in the press and more or less put to rest any efforts by the Christian clergy to stop the process. (408) The only option left for the churches was a political one: to campaign so that the law could be defeated through the referendum.

b. Other Challenges to the Referendum

Legal challenges to the referendum came before and after it was held on August 4, 2010. As already mentioned, apart from the clergy, there were a number of civil society groups unhappy with Parliament taking over the processes, and they were eager to stop the referendum. The first attempt by the civil society groups to challenge their exclusion came before the IICDRC in the form of a petition by Andrew Omtata Okoiti and others. (409) The petitioners claimed that their sovereign rights to participate in the replacement of the Constitution had been violated. They listed what they perceived as the various shortcomings in the review processes that occasioned the denial of rights, which included: the inability of CoE to perform its functions due to lack of "competences" within its ranks; lack of consultations of all Kenyan groups; illegal alterations of the harmonized draft by Parliament which amounted to the usurpation the role of CoE and therefore a violation of the rights of all adult Kenyans; and the framing of the referendum question in a binary fashion (yes or no) instead of open-ended questions. (410) The petitioners also contested the lack of provisions for Kenyans in diaspora to participate in the referendum. On this basis, the petitioners sought an order stopping the referendum. (411) This petition had virtually no chance of success because most of its claims had been addressed by express legislation. Thus, the claims were merely a nuisance. Second, it was mischievous for the petitioners to bring their case at the moment when the referendum was just about to be held, when they had more than ample time to do so before then since the Review Act which they were challenging was enacted in 2008. The court had no difficulty dismissing this petition. (412)

Surprisingly, just after the Andrew Omtata Okoiti petition, two similar suits contesting the new amendments to the draft law were filed. The first was by thirteen petitioners led by Alice Waithera Mwaura, (413) seeking a permanent injunction stopping the IIEC from conducting the referendum. (414) The petition was based on the allegations that CoE had unilaterally inserted provisions into the draft law, thereby negating or compromising the purpose and objects of the review process, and that some provisions of the draft law were in violation of the existing (old) constitution. (415) This petition was dismissed with equal ease. The court observed that the petitioners were aware of all the stages that had been undertaken in the review process. (416) Despite this fact, they saw it fit to file their claim barely a month before the referendum. It was therefore the courts view that the applicants' action amounted to abuse of the court processes, especially because there was no proof that the applicants had been denied the chance to participate in the process or were blocked from giving their views to the CoE or any other review organ. (417)

The other suit, Eric Nicholas Omondi v. Attorney General, (418) challenged the action of the CoE on the basis that it had exceeded its mandate as given by the Review Act 2008 by inserting in the draft constitution matters that did not reflect the views and aspirations of the Kenyan people; deleting the provisions establishing the Office of the Prime Minister (that were originally contained in the Harmonised Draft Constitution) and thus disregarding the views of the Kenyan people; and opening debate on matters that were "contentious." (419) The court found the petition to be misconceived since the CoE's mandate was not limited to issues identified as contentious, and that CoE had acted well within its discretionary public power. The court also ruled that it had no jurisdiction to rectify the draft constitution and could not therefore rule on the legality of its clauses.

After the referendum and the approval of the draft constitution by about 67% of the total vote, Mary Ariviza went to the High Court to challenge the referendum. (420) The High Court rejected her judicial review application for lack of jurisdiction and she, joined by Okotch Mondo, went to the IICDRC. (421) The petitioners sought a declaration that the referendum results released by the IIEC on August 23, 2010 be declared null and void, and that the promulgation of the new constitution be suspended until the petition was heard and final determination made. (422) At the hearing, the court learned that although the petition was filed on August 19, 2010, it was not served on the IIEC until August 24, 2010, the day after the IIEC released the referendum results. (423) The IIEC, in publishing the results, had acted within its mandate as required by law and was oblivious of the pending suit. Second, the court noted that the petitioners failed to deposit the security of KSh 2 million with the court as required by Section 44(3) of the Review Act. (424) In the court's view, therefore, the petitioner had not met the procedural requirement for bringing the action. Regarding the injunction sought by the petitioners, the court found that stopping the promulgation of the new Constitution would amount to challenging or changing the provisions of the Constitution, and the court had no jurisdiction to do this. The petition was thus dismissed. (425)

Having lost at IICDRC, the petitioners took their complaint to the East African Court of Justice in Arusha. (426) At the regional court, the petitioners sought a declaratory order against the Kenya government and the Secretary to the East African Community that the conduct and process of the referendum and the subsequent promulgation of the Constitution by the Government of Kenya were an infringement of the treaty and, therefore, null and void. (427) The main allegation by the petitioners was that there had been irregularities in the conduct of the referendum, which amounted to a violation of rule of law and, by extension, a violation of Articles 5(1), 6(c,), 6(d), 7(2)(c), 27(1), 29 and 30 of the Treaty Establishing the East African Community, to which Kenya was a party. (428) Also, that there had been an alteration of the draft law because the version put forward for the referendum was different from the one approved by Parliament. At the preliminary stages, the respondents contested the court's jurisdiction, but this objection was overruled. (429) Also, the petitioners asked for an injunction to against the respondents restraining any further implementation of the Constitution until the matter was finally determined. (430) The court denied the request for injunction, arguing that a lot had happened already and that stopping the process by way of an injunction was bound to cause more harm should the respondents eventually prevail. (431) On the substantive claim, the court found no evidence that proper procedure was not followed. (432) Moreover, since the IICDC had already heard the disputed matter, determining whether the IIEC's conduct was proper amounted to a review of the IICDC decision, something which was not within the court's competence. (432) The court therefore dismissed the reference.

From the foregoing court decisions, one can rightly conclude that the IICDC was a much more expedient forum. This could be attributed to its limited mandate and the pressure to deliver within short time frames. Its efficiency may also have been because all the judges were perhaps eager to make a mark on the profession or driven by the passion to effect change. They represented the emerging cohort of young professionals who were neither tainted by ethnic cleavages nor burdened by the insidious schemes of protecting the illegally acquired wealth. However, the court's influence on the review process at this stage was bound to be minimal. Much of what dictated the pace of the review was political, and the wrangling in the courts was a mere sideshow. The draft constitution itself was fought in the campaigns before the referendum on the basis of deep seated political interests rather than on its legalistic ramifications.

CONCLUSION

In the twenty year period of the review process, the courts confronted the problems generated by the process in a conflicting and sometimes contradictory fashion. We find the explanation for the courts behavior in the manner in which the review proceeded. To begin with, the review itself was not a linear process. The institutions that it engendered changed almost as rapidly as the political formations. The primary actors, spirited by hidden agendas, continuously shifted their positions. The courts were the only actors stuck with an old constitution that was being assailed from every direction.

In our view, the role of the judiciary in the process must be mapped against the course of the changing reform climate. For example, when the reforms began in the 1990s, the courts were completely out of the picture. This is because the initial clamour for constitutional change was never really premised on an objective evaluation of the shortfalls of the old constitution, but rather on the belief that it was the best way to get rid of the despotic Moi regime. This had two consequences. First, the process was conceived as purely political and thus outside the judicial province. Secondly, because constitutionalism was not the reason for which the process was initiated, the turbulence did not cease even after Moi and his cronies were removed from power in 2002. Indeed, things became worse, with the process gaining its own momentum and gathering a multitude of constitutional issues, most of which the Kenyan body politik was not quite ready to deal with. This then created an entry point for the courts. The landmark decisions that we have discussed here, such as Njoya and Patrick Ouma, were intended to show the unity of the political agenda for reform with the legalistic demands of constitutionalism, a necessary unity for the success of the constitutional reform process. Indeed, the lack of unity throughout the 1990s explains why there was vigorous judicial activity on review-related matters from 2002 through 2007.

From 2008 onwards, a different picture emerged. The violence that followed the flawed 2007 elections brought back the sobering reality that constitutional change had to be accomplished if the future of the country was to be secured. This experience, together with the results of the Njoya ruling, made it imperative that the process be anchored on a firm constitutional and legislative framework. Many changes were effected, beginning with the amendment of Section 47 of the Constitution to provide for a review mechanism and the passing of the Review Act 2008. These legislative changes not only created a range of review bodies, but it also imposed on them strict time frames which if not followed could them expose to litigation. As we discussed in this Article, the changes into the legislative and judiciary's approach to reform were largely responsible for delivering the Constitution after nearly twenty years of failed reform. But these changes also diminished judicial influence on the process. From then on, much of what happened in courts was a mere side show, not at all crucial to the finalisation of the review. An example of this is Jesse Kamau, which declared a Constitutional provision to be unconstitutional, as well as many of the petitions that were heard by the IICDRC.

Now that the Constitution has been enacted, the challenge for the judiciary is to ensure that it grows and delivers the benefit of constitutionalism to Kenyans. The new Constitution is by all measures a progressive one. It has a wider scope of rights for citizens and establishes extensive mechanisms for restraint of political power than hitherto realised in Kenya. Already the government has expressed fears that there may be a flood of cases in courts.434 If Kenya wishes to survive the Nigerian or Ghanaian experience of multiple constitutions, then the judiciary must interpret the constitution more flexibly.

If there is one thing that the long, tumultuous reform process has exposed, it is the endemic lack of judicial independence. This has been the bane of Kenya's judicial practice for years. (435) Although the lack of independence could be attributed to many factors, the way in which judicial organs dealt with review problems suggested that they were still captive to what Posner calls "ethnic cleavages." (436) Clearly, individual judges were not able to de-link their professional lives from the demands of an overbearing ethnic cosmos that they inevitably found themselves in. Adding in corruption, the core of judicial functioning in Kenya likely suffered its worst spell during that period. Perhaps that is why Kenyans insisted on judicial reform as part and parcel of the new Constitution's implementation programme. Hopefully, in the new dispensation the judiciary will be able to overcome its difficulties.

(1.) See, e.g., WILLY MUTUNGA, CONSTITUTION-MAKING FROM THE MIDDLE: CIVIL SOCIETY AND TRANSITION POLITICS IN KENYA, 1992-1997 (1999); P.L. ONALO, CONSTITUTION-MAKING IN KENYA (2004); TAYA WEISS, THE CULTURE OF CONSTITUTIONAL REFORM IN KENYA (1999); Laurence Juma, Ethnic Politics and Constitutional Review Process in Kenya, 9 TULSA J. COMP. INT'L L. 471 (2002); Stephen N. Ndegwa & Ryan E. Letourneau, Constitutional Reform, in DEMOCRATIC TRANSITIONS IN EAST AFRICA 83 (Paul J. Kaiser & F. Wafula Okumu eds., 2004); J.B. Ojwang, Constitutional Trends in Africa The Kenya Case, 10 TRANSNAT'L L. & CONTEMP. PROBS. 517 (2000); BRIAN KENNEDY & LAUREN BIENIEK, CENTER FOR STRATEGIC AND INTERNATIONAL STUDIES, MOVING FORWARD WITH CONSTITUTIONAL REFORM IN KENYA: A REPORT OF THE CSIS AFRICA PROGRAM (2010), available at http://csis.org/files/publication/101203 Kennedy Moving ForwardKenya Web.pdf.

(2.) See Julius O. lhonvbere, The Nigerian State as an Obstacle to Federalism: Towards a New Constitutional Compact for Democratic Politics, in FEDERALISM IN AFRICA: THE IMPERATIVE OF DEMOCRATIC DEVELOPMENT 187 (Aaron T. Gana & Samuel G. Egwu eds., 2003); see also J. ISAWA ELAIGWU, THE POLITICS OF FEDERALISM IN NIGERIA (2007); Eyene Okpanachi & Ali Garba, Federalism and Constitutional Change in Nigeria, 7 FED. GOVERNANCE 1 (2010); George Swan, The Constitution of the Second Republic of Nigeria 20 J. ASIAN & AFR. STUD. 42 (1985).

(3.) For the history of constitutional changes and the current debates on its reform agenda, see Stephen Kwaku Asare & H. Kwasi Prempeh, Amending the Constitution of Ghana: Is the Imperial President Trespassing?, 18 AFR. J. INT'L & COMP. L. 192 (2010).

(4.) See CONSTITUTION (1995) (Uganda), http://www.ugandaembassy.eom/Constitution_of_ Uganda.pdf. This is the current constitution which repeals the 1967 constitution. See [section] 288(1). The first constitution was enacted in 1962 when the country gained independence. See Extracts from the Constitution of Uganda, 1962, http://www.buganda.com/const62m.htm (last visited Aug. 14, 2012).

(5.) See CONSTITUTION (2010) (Kenya), available at http://www.kenyaembassy.com/pdfs/ The%20Constitution%20of%20Kenya.pdf. It replaces Constitution of Kenya 1963, available at http://www.unesco.org/new/fileadmin/MULTIMEDIA/HQ/CI/WPFD2009/pdf/Kenyan_constitution_a mended_2008.pdf, which was repealed immediately the new constitution came in force. See CONSTITUTION [section] 264 (2010) (Kenya).

(6.) See CONSTITUTION, art. 228 (2006) (Democratic Republic of the Congo), available at http://www.wipo.int/wipolex/en/text.jsp?file_id=193675.

(7.) One example is Zimbabwe, which is currently on the throes of replacing its independence constitution. See, e.g., Sara Rich Dorman, NGOs and the Constitutional Debate in Zimbabwe: From Inclusion to Exclusion, 29 J. S. AFR. STUD. 845 (detailing how the government's refusal to allow public participating in the constitutional reform process led to the defeat of the draft in the 2000 referendum).

(8.) See Julius O. Ihonvbere, Polities of Constitutional Reforms and Democratization in Africa, 41 INT'L J. COMP. SOC. 9, 9 (2000).

(9.) See generally J.B. OJWANG, CONSTITUTIONAL DEVELOPMENT IN KENYA: INSTITUTIONAL ADAPTATION AND SOCIAL CHANGE (1990); J. K'Owade, Separation of Powers and Kenya's Judicial Performance Since 2003, in JUDICIAL REFORM IN KENYA 2003-2004 33 (Maurice Odhiambo Makoloo & Philip Kichana eds., 2005).

(10.) See Ali Mazrui, Constitutional Change and Cultural Engineering: Africa's Search for New Directions, in CONSTITUTIONALISM IN AFRICA: CREATING OPPORTUNITIES, FACING CHALLENGES 22 (J. Oloka-Onyango ed., 2001); Issa G. Shivji, State and Constitutionalism: A New Democratic Perspective, in STATE AND CONSTITUTIONALISM: AN AFRICAN DEBATE ON DEMOCRACY 28 (Issa G. Shivji ed., 1991). A discussion of the influence that the principle could have on the interpretation of the constitution can be read in the South African case of Certification of the Constitution of the Republic of South Africa, 1996 1996 (4) SA 744 (CC). See also Matthew Chaskalson & Dennis Davis, Constitutionalism, the Rule of Law, and the First Certification Judgment, 13 S. AFR. J. ON HUM. RTS. 430 (1997). For a historical analysis of how the ideas of constitutionalism developed in western political thought, see Howell A. Lloyd, Constitutionalism, in THE CAMBRIDGE HISTORY OF POLITICAL THOUGHT: 1450-1700 254 (J.H. Burns & Mark Goldie eds., 1991). See also Bruce Ackerman, The Rise of the World of Constitutionalism, 83 VA. L. REV. 771 (1997); Adam Czarnota, Inclusion, Exclusion, Constitutionalism and Constitutions, 25 AUSTL. J. LEGAL PHIL. 333 (2000). On the interplay between separation of powers and constitutionalism, see generally M. J. C. VILE, CONSTITUTIONALISM AND SEPARATION OF POWERS (1998), and GERHARD CASPER, SEPARATING POWER: ESSAYS ON THE FOUNDING PERIOD (1997).

(11.) These are long-established principles of constitutional law. See, e.g., Abram Chayes, How Does the Constitution Establish Justice?, 101 HARV. L. REV. 1026 (1988); Samuel Freeman, Constitutional Democracy and the Legitimacy of Judicial Review, 9 LAW & PHIL. 327 (1990).

(12.) For the earlier history of the review process, see Juma, supra note 1; Alicia Bannon, Designing a Constitution--Drafting Process: Lessons .from Kenya, 116 YALE L. J. 1824 (2007); see also Waithaka Waihenya, Kenya's Constitutional Headache, GUARDIAN (Mar. 16, 2010), http://www.guardian.co.uk/commentisfree/2010/mar/16/kenya-constitution-2010.

(13.) The new constitution was promulgated into law on August 27, 2010. See Murithi Mutiga, Kenya Takes Its Place Among World's Top Democracies at Emotional Ceremony, DAILY NATION (Nairobi) (Aug. 27, 2010), http://www.nation.co.ke/Kenya+Referendum/Kenya+takes+its+place +among+worlds+top+democracies/-/926046/998460/-/qj4gq3/-/index.html; Xan Rice, Kenyan Constitution Signed into Law, GUARDIAN (Aug. 27, 2010), http://www.guardian.co.uk/world/2010/ aug/27/kenya-constitution-law; Peter Greste, Kenya's New Constitution Sparks Hope of Rebirth, BBC NEWS (Aug. 27, 2010, 7:35 AM), http://www.bbc.co.uk/news/world-africa-11103008.

(14.) In Zimbabwe, for example, the latest attempt, which began in 1997, fell apart when the public, in a referendum, voted against the draft because it had been amended heavily by President Mugabe. See John Hatchard, Lessons on Constitution-Making from Zimbabwe, 45 J. AFR. L. 210 (2001). The path of constitutional reform in Zambia has been equally tumultuous. See Melvin Mbao, The Politics of Constitution-Making in Zambia: Where Does the Constituent Power Lie? in FOSTERING CONSTITUTIONALISM IN AFRICA 87 (Charles Manga Fombad & Christina Murray eds., 2010). For general appraisal of constitution-making problems in Africa, see Muna Ndulo, Constitution-Making in Africa: Assessing Both the Process and the Content, 21 PUB. ADMIN. & DEV. 101 (2001).

(15.) See, e.g., James Thuo Gathii, Popular Authorship and Constitution Making: Comparing and Contrasting the DRC and Kenya, 49 WM. & MARY L. REV. 1109 (2008). In the case of South Africa, for example, the urgency in erasing the legacy of a horrible past dictated a rather quick pace towards constitutional affirmation of democracy. Constitution-making took only two years. Id. at 1110; Jeremy Sarkin, The Drafting of Final South African Constitution from a Human Rights Perspective, 47 AM. J. COMP. L. 67, 69 (1999).

(16.) See infra Part III. Kenya is a case in point where the post-election violence of 2008 was the catalyst to the renewed effort by government to complete the reform process. See discussion regarding the Phase IV of the Reform Process infra Part III.A.

(17.) Ruti Teitel, Transitional Jurisprudence: The Role of Law in Political Transformation, 106 YALE L. J. 2009, 2076 (1997); see also Vivien Hart, Constitution-Making and the Transformation of Conflict, 26 PEACE & CHANGE 153, 154 (2001).

(18.) Constitutions often carry two identities--that of a political charter and a legal instrument. See Githu Muigai, Political Jurisprudence on Neutral Principles: Another Look at the Problem of Constitutional Interpretation, 1 E. AFR. L. J. 1 (2004).

(19.) See Juma, supra note 1, at 506. Daniel Arap Moi came to power after the death of Kenya's first president, Jomo Kenyatta in 1978. Id. Moi was the first to announce in 1995 that his government would undertake a process of enacting a new constitution review because the existing one did not meet the expectations and needs of Kenyans. Id.

(20.) See Ahmednasir Abdullahi, Restoring Public Confidence in Kenya's Discredited, Corrupt, Inefficient and Overburdened Judiciary: The Judicial Service Commission Agenda for Reform, a paper read at the judges colloquium, Nairobi, Aug. 14-15, 2011, http://www.kenyalaw.org/klr/index.php./ fileadmin/pdfdownloads/bills/2011/index.php?id=894.

(21.) See Juma, supra note 1, at 515.

(22.) See Makau Mutua, Justice Under Siege: The Rule of Law and Judicial Subservience in Kenya, 23 HUM. RTS. Q. 96, 99 (noting how Moi had resisted the installation of democracy and used the courts to protect his political interests by making all judges completely subservient to him, and for this reason, aggrieved parties could not expect "the rule of law to be upheld by the Kenyan courts" if the offender was connected to Moi).

(23.) Mwai Kibaki succeeded Moi in 1982 and in an election that was mostly viewed as a successful transition to democracy. For further discussion, see infra Part I.B.

(24.) See Karega Munene, Production of Ethnic Identity in Kenya, in ETHNIC DIVERSITY IN EASTERN AFRICA: OPPORTUNITIES AND CHALLENGES 48 (Kimani Njogu, Kabiru Ngeta & Mary Wanjau eds., 2010); JOHN OUCHO, UNDERCURRENTS OF ETHNIC CONFLICTS IN KENYA 50 (2002); Ali Mazrui, Ideology, Theory and Revolution: Lessons from the Mau Mau, 28 RACE & CLASS 53 (1987).

(25.) See Juma, supra note 1; see also BETHWELL OGOT, ETHNICITY, NATIONALISM AND DEMOCRACY IN AFRICA 24 (1996); Korwa G. Adar & Isaac M Munyae, Human Rights Abuse in Kenya Under Daniel Arap Moi. 1978-2001, 5 AFR. STUD. Q. 1 (2001).

(26.) See generally DAVID THROUP & CHARLES HORNSBY, MULTI-PARTY POLITICS IN KENYA: THE KENYATTA AND MOI STATES AND THE TRIUMPH OF THE SYSTEM IN THE 1992 ELECTION (1998); Rok Ajulu, Kenya: The Survival of the Old Order, in VOTING FOR DEMOCRACY, WATERSHED ELECTIONS IN CONTEMPORARY ANGLOPHONE AFRICA 128 (John Daniel et al. eds., 1999); Stephen N. Ndegwa, The Incomplete Transition: The Constitutional and Electoral Context in Kenya, 45 AFR. TODAY 193 (1998); Roger Southall, Reforming the State? Kleptocracy and the Political Transition in Kenya, 26 REV. AFR. POL. ECON. 93 (1999).

(27.) See, e.g., DAVID THROUP & CHARLES HORNSBY, MULTI-PARTY POLITICS IN KENYA, supra note 26, at 63.

(28.) For an analytical discussion of the IPPG, see Rok Ajulu, Kenya: One Step Forward, Three Steps Back: The Succession Dilemma, 88 REV. AFR. POL. ECON. 197 (2001). See also Pal Ahluwalia,

The Vulgarization of Politics: Ethnic Violence in Kenya, in VIOLENCE & NON-VIOLENCE IN AFRICA 51 (Pal Ahluwalia et al. eds., 2007).

(29.) The Public Order Act, (2009) Cap. 56 (Kenya). The initial version of this Act was passed by the British colonialists to limit association and gathering of African people. See Diane Ciekawy, Constitutional and Legal Reform in the Postcolony of Kenya, 25 ISSUE: J. OPINION 16 (1997). For a discussion of the historical developments that lead to the enactment of this Act, see Y.P. GHAI & J.P. W.B. McAUSLAN, PUBLIC LAW AND POLITICAL CHANGE IN KENYA: A STUDY OF THE LEGAL FRAMEWORK OF GOVERNMENT FROM COLONIAL TIMES TO THE PRESENT (1970). In the post-independence period, the Act became a major source of irritation for opposition pelicans and civil society activists because it was used by the government to deny them permits for public gathering. See Makau wa Mutua, Human Rights and State Despotism in Kenya: Institutional Problems, 41 AFR. TODAY 50 (1994).

(30.) The Chief's Authority Act, (1988) Cap. 128 (Kenya). This was the former Native Authority Ordinance, which was adopted wholesale upon attainment of independence in 1960. See GHAI, supra note 29.

(31.) See Joel Barkan, Toward a New Constitutional Framework in Kenya, 45 AFRICA TODAY 221 (1998).

(32.) Id.

(33.) Constitution of Kenya Review Act (1997) Cap. 13 (Kenya).

(34.) Id.[section]3.

(35.) Id. [section] 20.

(36.) Id. [section] 27(1)(c).

(37.) Id. [section] 27(6).

(38.) Id. [section] 4.

(39.) Constitution of Kenya Review Act (1997) Cap. 13 [section] 10(b) (Kenya).

(40.) Id. [section] 26(1). Parliament however reserved the right to extend this period, Id. [section] 26(3)

(41.) See Juma, supra note 1; see also MAKAU MUTUA, KENYA'S QUEST FOR DEMOCRACY: TAMING LEVIATHAN (2008).

(42.) Juma, supra note 1, at 516.

(43.) Adams Oloo & Winnie Mitullah, The Legislature and Constitutionalism in Kenya, in 1 WHEN THE CONSTITUTION BEGINS TO FLOWER: PARADIGMS FOR CONSTITUTIONAL CHANGE IN KENYA 35 (Lawrence Murugu Mute & Smokin Wanjala eds., 2002).

(44.) See Macharia Munene, Kibaki's Moment in History: The Election of 2002 and Its Aftermath, 1 E. AFR. J. OF HUM. RTS AND DEMOCRACY 75 (2003).

(45.) Id.

(46.) CRCK, THE PEOPLE'S CHOICE: THE REPORT OF THE CONSTITUTION OF KENYA REVIEW COMMISSION (2002), available at http://www.sarpn.org.za/documents/d0000008/index.php.

(47.) Id. at 70.

(48.) Id.

(49.) Id.

(50.) Id.

(51.) M.M. Ole Keiuwa and Vitalis Juma v. Yash Pal Ghai, (2002) Misc. App. No. 1110 of 2002 K.L.R. (H.C.K.).

(52.) Tom K'Opere and John Njongoro v. Yash Pal Ghai and Constitution of Kenya Review Commission, High Court, Nairobi, Misc. App. No. 994 of 2002 (Unreported); see also Zachary Ochieng, Transition in Jeopardy, AFRICA NEWS-Kenya Election Watch, Sept. 15, 2002, available at http://web.peacelink.it/afrinews/kenya_election/sept.htm; INT'L COURT OF JUSTICE, THE JUDICIARY IN REVIEW 2000-2002 16 (2002), available at http://pdf.usaid.gov/pdfdocs/PNACW012.pdf.

(53.) See George Kegoro, Forces Putting Brakes on Ghai Commission, Daily Nation, Nairobi, Sept. 8, 2002, available at http://pdf.usaid.gov/pdf_docs/PNACW012.pdf.

(54.) Id.

(55.) Id.; Pamela Chepkemei, Kenya: Judge Blocks Writing of the Constitution, DAILY NATION (Nairobi), Aug. 31, 2002, available at http://allafrica.com/stories/200209010011.html.

(56.) Kegoro, supra note 53.

(57.) Id.

(58.) Chepkemei, supra note 55.

(59.) See Ochieng, supra note 52.

(60.) The late Justice Ole Keiwa later became a judge in the East African Court of Justice. See Henry Onoria, Botched up Elections, Treaty Amendments and Judicial Independence in East African Community, 54 (1) J. OF AFR. L. 81 (2010). Justice Juma's career came to an end after be was dismissed. See Caroline Maina, Dismissed Judge Flops in Bid to Get His Job Back, THE STAR, Dec. 22, 2010, available at http://the-star.co.ke/national/national/9651-dismissed-judge-flops-in-bid-to-gethis-job-back.

(61.) See Beth Elise Whitaker & Jason Giersch, Voting on a Constitution: Implications for Democracy in Kenya, 27 J. OF CONTEMPORARY AFR. STUD. 5 (2009).

(62.) See Bannon, supra note 12, at 1834; Ghai Team Sticks to Plan for Law Talks, DAILY NATION (Nairobi) (Oct. 27, 2002), http://www.nation.co.ke/News/-/1056/304376/-/swhn8r/-/index.html.

(63.) Reportedly, Moi had promised Ghai that the election would be postponed until March of the following year to allow the commission to finalize the review process. See Jill Cotrell & Yash Ghai, Constitution Making and Democratization in Kenya 2000-2005, 14 DEMOCRATIZATION 7 (2007); Juma Khayera, Ghai on Ministers Who Stifled the Work of His Review Team, THE STANDARD (Nairobi), http://www.standardmedia.co.ke/?id=1144027975&cid-591&articleID=1144027975 (last updated Nov. 8, 2009).

(64.) See Cotrell & Ghai, supra note 63, at 7; Francis Openda, Ghai Stops Review Talks Indefinitely, THE STANDARD (Nairobi) (Oct. 28, 2002), http://allafrica.com/stories/printable/200210 280719.html.

(65.) KANU managed to get only 31% of the votes against NARC's 61%. NARC was, in essence, a combination of two factions that had organized themselves around the leadership of Mwai Kibaki and Raila Odinga. The Kibaki faction comprised the Democratic Party ("DP"), FORD Kenya, National Party of Kenya and two civil societies. This faction formed itself into National Alliance Party of Kenya ("NAK"). The Raila faction comprised the Rainbow Alliance, which was formed by a group of KANU dissidents who left the party after Moi nominated Uhuru Kenyatta for president and the Liberal Democratic Party ("LDP"). The Rainbow Alliance was later swallowed by LDP. During the run up to the elections, NAK and LDP united to form the National Rainbow Coalition and agreed on a memorandum of understanding that they would field Kibaki as their presidential candidate. For detailed account of the party formations before the 2002 general elections, see Dean E. McHenry, Political Parties and Party Systems, in DEMOCRATIC TRANSITIONS IN EAST AFRICA 38, 42 (Paul J. Kaiser & F. Wafula Okumu eds., 2004). Analysts attribute NARC's success to this unity. See Steven Orvis, Moral Ethnicity and Political Tribalism in Kenya's "Virtual Democracy ", 29 AFR. ISSUES 8, 9-10 (2001).

(66.) Stephen N. Ndegwa, Third Time Lucky?, 14 J. DEMOCRACY 145, 145 (2003).

(67.) See generally Musambayi Katumanga et al., THE MOI SUCCESSION; THE 2002 ELECTIONS IN KENYA (2005); Peter Kagwanja, 'Power to Uhuru': Youth Identity and Generational Politics in Kenya's 2002 Elections, 105 AFR. AFFAIRS 51 (2006).

(68.) See, e.g., Jennifer Cooke & David Throup, New Chance for Kenya: US Policy Should Help Make the Most of It, 13 AFR. NOTES 1 (2003).

(69.) See Edwin Odhiambo Abuya, Consequences of a Flawed Presidential Election, 29 LEGAL STUDIES 127, at 130 (2009); Peter Kagwanja, Courting Genocide: Populism, Ethno-nationalism and the Informalisation of Violence in Kenya's 2008 Post-Election Crisis, 27 J. CONTEMP. AFR. STUD. 365, 372 (2009).

(70.) See Godwin R. Murunga & Shadrack W. Nasong'o, Bent on Self-Destruction: The Kibaki Regime in Kenya, 24 J. CONTEMP. AFR. STUD. 1 (2006).

(71.) Id at 8.

(72.) See, e.g., National Rainbow Coalition, CENTRE FOR MULTIPARTY DEMOCRACY (2009), http://www.cmd-kenya.org/party.php?ppid=27&partyname=National%20Rainbow%20Coalition.

(73.) See Ndegwa, supra note 66, at 154.

(74.) Stephen Brown, Theorising Kenya's Protracted Transition, 22 J. CONTEMP. AFR. STUD. 325, 334 (2004).

(75.) See Bannon, supra note 12, at 1836.

(76.) For a full discussion of the "Bomas" process, see generally THE ANATOMY OF BOMAS: SELECTED ANALYSES OF THE 2004 DRAFT CONSTITUTION OF KENYA (Kithure Kindiki & Osogo Ambani eds., 2005).

(77.) See Bannon, supra note 12, at 1837.

(78.) See, e.g., Muriithi Muriuki & Tony Kago, Raila and Kiraitu in New Clash over Ghai, DAILY NATION (Nairobi) (Nov. 24, 2003), http://www.nation.co.ke/News/-/1056/274476/-/shppjo/-/index.html.

(79.) See Ngumbao Kithi et al, Narc Parties Are Now Obsolete, Says Kibaki. DAILY NATION, Nairobi, Dec. 30, 2003, available at http://www.accessmylibrary.com/coms2/summary_0286_19866616_ITM; Uproar Over Kenya's Leaders Decree, BBC NEWS (Dec. 30, 2003), http://news.bbc.co.uk/2/hi/africa/3356431.stm.

(80.) See Abuya supra note 69; Mulisa Tom, Public Participation in Constitution Making: A Critical Assessment of Kenya's Experience 21 (2009) (unpublished LL.M. dissertation, University of Pretoria) (on file with authors).

(81.) Freedom in the World County Reports Kenya, 2003, in FREEDOM IN THE WORLD 2003: ANNUAL SURVEY OF POLITICAL RIGHTS AND CIVIL LIBERTIES 306 (A. Piano & A. Puddington eds., 2004).

(82.) See, e.g., Pheroze Nowrojee, Why the Constitution Needs to be Changed, in IN SEARCH OF FREEDOM AND PROSPERITY: CONSTITUTIONAL REFORM IN EAST AFRICA 386 (Kivutha Kibwana et al. eds., 1996).

(83.) Laurence Juma, The Legitimacy of Indigenous Legal Institutions and Human Rights Practice in Kenya: An Old Debate Revisited, 14 AFR. J. OF INT'L & COMP. L. 191 (2006).

(84.) See Mumnga & Nasong'o, supra note 70, at 14.

(85.) See Beth Elise Whitacker & Jason Giersch, Voting a Constitution: Implications for Democracy in Kenya, 27 J. CONTEMP. AFR. STUD. 1, 6 (2009).

(86.) Id.

(87.) Id.

(88.) See Cotrell & Ghai, supra note 63, at 18 (noting how this position to become the main point of contention in Njoya case, infra Part II).

(89.) But a motion to amend the constitution brought by Mirugi Kariuki, a key Kibaki supporter, was roundly rejected by delegates. See Zachary Ochieng, Controversy Mars Constitution Conference, AFRICA NEWS (Apr. 16, 2003), http://web.peacelink.it/afrinews/kenya election/may 03.htm.

(90.) See generally Cotrell & Ghai, supra note 63 (giving the example of the government effecting sweeping reforms in the judiciary without waiting for a revamped Judicial Service Commission to be established as was anticipated by the new Constitution).

(91.) See Evelyne Asaala, Exploring Transitional Justice as a Vehicle for Social and Political Transformation in Kenya, 10 AFR. HUM. RTS L. J. 384 (2010). Some view this as the first political murder under the Kibaki regime. See Kenya: Murder Most Foul Again, AFRICA CONFIDENTIAL, Sept. 26, 2003, at 1; see also Standard Boss, Editors Quizzed over Mbai Leakage, DAILY NATION (Nairobi), Sept. 30, 2003, at 4; Muriithi Muriuki & Njeri Rugene, 50 MPs Walk Out in Mbai Protest, DAILY NATION (Nairobi), Oct. 3, 2003, at 1.

(92.) Cotrell & Ghai, supra note 63, at 12, 18.

(93.) See Fred Oluoch, Daggers are Drawn as Bomas III Kicks Off, NEWS ON AFRICA FROM AFRICA (Jan. 2004), http://www.newsfromafrica.org/newsfromafrica/articles/art_2828.html

(94.) See G Kibara, The State of Constitutionalism in Kenya, in CONSTITUTIONALISM IN EAST AFRICA: PROGRESS CHALLENGES AND PROSPECTS IN 2002, 70 (B Tusasirwe eds., 2003)

(95.) Cotrell & Ghai, supra note 63, at 12.

(96.) Id. at 16.

(97.) C. Odote, So Near Yet So Far Away: The State of Constitutional Development in Kenya, in CONSTITUTIONALISM IN EAST AFRICA: PROGRESS CHALLENGES AND PROSPECTS IN 2002 109 (B Tusasirwe eds., 2003)

(98.) (2004) 4 LRC 559 (Kenya HC).

(99.) (2005) 3 K.L.R. 84 (H.C.K.).

(100.) Probably that is why section 47 of the Constitution allowed "alteration" of its provision(s) only with an affirmative vote of 65% of members of Parliament. See HWO Okoth-Ogendo, The Politics of Constitutional Change in Kenya Since Independence, 1963-69, 79 AFR. AFFAIRS 9 (1972) (noting that constitutional alterations must be guarded because of the important role the constitutions serve, of being an "arbiter over political activity"); Githu Muigai, Towards a Theory of Constitutional Amendment, 1 E. AFR. J. HUM RTS. & DEMOCRACY 1 (2003) (suggesting that "alterations" must not be aimed at making fundamental changes to the constitution itself).

(101.) See Chuks Okpaluba, Justiciability, Constitutional Adjudication and the Political Question in a Nascent Democracy: South Africa (Part I), 18 SAPR/PL 331 (2003).

(102.) Examples of these contests include the forced removal of Chief Justice Bernard Chunga, a non-Kikuyu, and the so-called "radical surgery" that culminated in the removal of twenty-three senior High Court and Court of Appeal judges (non-Kikuyus) and eighty-five Magistrates on charges of corruption, without due process. See Evelyn Kwamboka, Court Reassures Judge Over Suit, E. AFR. STANDARD (Nairobi) (May 12, 2009), http://www.standardmedia.co.ke/Inside Page.php?id=1144 013938&cid=159&; see also Wahome Thuku, How Suspended Judge Got Justice, E. AFR. STANDARD (Nairobi) (Apr. 26, 2010), http://www.standardmedia.co.ke/InsidePage.php?id=2000008502&cid=159&story=How%20suspended%20judge%20got%20justice; Joel D. Barkan, Kenya drier Moi, 83 FOREIGN AFF. 87 (2004); Marc Lacey, A Crackdown on Corruption in Kenya Snares Judges, N.Y. TIMES (Oct. 26, 2003), http://www.nytimes.com/2003/10/26/world/a-crackdown_on_corruption_in_kenya-snares- judges.html.

(103.) Timothy Njoya v. Attorney General, (2004) 4 LRC 559 (Kenya HC).

(104.) Maathai v. Kenya Times Media Trust Ltd, (1989) K.L.R. 267 (H.C.K.). For a discussion of this case, see Laurence Juma, Environmental Protection in Kenya: Will the Environmental Management and Co-ordination Act (1999) Make a Difference?, 9 S.C. ENVTL. L.J. 181, 194 (2002). See also Jackton B. Ojwang, Kenya's Place in International Environmental Law Initiative, 5 AFR. J. INT'L & COMP. L. 781, 799 (1993).

(105.) High Court (Nairobi) Misc. App. No. 356 of 1986 (Unreported); see also Gibson Kamau Kuria & Algeisa M Vazquez, Judges and Human Rights: The Kenyan Experience, 35 J. AFR. L. 142 (1991); Tom O Ojienda, Inventory q[ Kenya's Compliance with International Human Rights' Obligations: A Case study of International Covenant on Civil and Political Rights, 1 E. AFR. J. HUM. RTS. & DEMOCRACY 91 (2003).

(106.) High Court (Nairobi) Misc. App. No. 279 of 1985 (Unreported). See Kuria & Vazquez, supra note 105, at 142.

(107.) High Court (Nairobi) Misc. App. No. 666 of 1990 (Unreported). See also Kuria & Vazquez, supra note 105, at 142; Maina Kiai & Anthony Kuria, The Human Rights Dimension of Corruption: Linking Human Rights Paradigm to Combat Corruption, 4 J. GLOBAL ETHICS 247, 250 (2008).

(108.) See also Anarita Karimi Njeri v. Republic, High Court (Nairobi) Crim. App. No. 180 of 1990 (Unreported). For detailed discussions of these limitations under the old constitution, see Ojienda, supra note 105, and Kuria & Vazquez, supra note 105.

(109.) Timothy Njoya v. Attorney General, (2004) 4 LRC 559 at 574, [paragraph] c (Kenya HC).

(110.) Id. at 590, [paragraph] b. Ringera relying on the Indian case of Kessevanada v State of Kerala 1973 AIR (SC) 1461, stated: "All in all, 1 completely concur with the dicta (quoted in para. b) in Kessevanada case that parliament has no power to and cannot in the guise or garb of amendment either change the basic features of the constitution or abrogate or enact a new constitution."

(111.) See, e.g., Patrick Ouma Onyango v Attorney General 2005 3 KLR 84 (HCK) (raising the same issues and citing the same cases as Njoya).

(112.) For a discussion of the origins and nature of the Majimbo politics, see David M. Anderson, "Yours in Struggle for Majimbo." Nationalism and the Party Politics of Decolonization in Kenya, 1955-64, 40 J. CONTEMP. HIST. 547 (2005).

(113.) Timothy Njoya v. Attorney General, (2004) 4 LRC 559, 560 (Kenya HC).

(114.) Id.

(115.) Id. at 569, para. f.

(116.) Id.

(117.) Id. at 569, para. c.

(118.) Id at 570, para. d.

(119.) Timothy Njoya v. Attorney General, (2004) 4 LRC 559, 573, para. f(Kenya HC).

(120.) Id.

(121.) Id.

(122.) Id. at 574.

(123.) RONALD DWORKIN, LIFE'S DOMINION: AN ARGUMENT ABOUT ABORTION, EUTHANASIA, AND INDIVIDUAL FREEDOM 119 (1993).

(124.) (2000) L.L.R. 2275 (H.C.K.).

(125.) Subsequent cases, such as Patrick Ouma, have equally affirmed this position. This is a departure from what is often referred to as the "Elman doctrine" (emanating from Republic v. Elman, (1969) E.A.L.R. 357). This position also finds favor in other jurisdictions. For example, in Namibia, a court has observed:

A Constitution is an organic instrument. Although it is enacted in the form of a Statute it is sui generis. It must be broadly, liberally and purposively be interpreted so as to avoid the "austerity of tabulated legalism" and so as to enable it to continue to play a creative and dynamic role in the expression and the achievement of the ideals and aspirations of the nation, in the articulation of the values bonding its people and in disciplining its Government.

Namibia v. Cultura 2000, (1994) S.A. 407, 418 (NASC) (Namib.).

(126.) See Timothy Njoya v. Attorney General, (2004) 4 LRC 559, 576, para. c (Kenya HC). Two eminent American judges in the nineteenth and twentieth centuries made the same point by emphasizing the concept of a "living constitution." By this approach, the language of a constitution written several hundreds of years ago should be interpreted in the light of the experience of the day. This approach recognizes the right of each generation to adapt the constitution to suit its own needs in so far as that adaptation is reconcilable with the language of the constitution. See McCulloch v. Maryland, 17 U.S. 316, 415 (1819) (Marshall, C.J.); Missouri v. Holland, 252 U.S. 416, 433 (1920) (Holmes, J.); see also Tuffour v. Attorney General, [1980] G.L.R. 637, 647 (Ghana) (Sowah, J.S.C.); C. HERMAN PRITCHETT, THE AMERICAN CONSTITUTION 35 (1977); W. Friedmann, Statute Law and Its Interpretation in the Modern State, 26 CAN. B. REV. 1277, 1287-88 (1948).

(127.) See Njoya,, (2004) 4 LRC at 576, para. c. The liberal and purposive approach was catapulted into prominence in Commonwealth constitutional adjudication as an essential method of constitutional interpretation by Lord Diplock in a Privy Council judgment involving the enforcement of the fundamental rights entrenched in the Constitution of Bermuda. Minister of Home Affairs v. Fisher, [1980] A.C. 319, 328 (P.C.) (appeal taken from Bermuda). See also Hinds v. The Queen, [1976] All E.R. 353, 359 (P.C.) (appeal taken from Jamaica); Ong Ah Chuan v. Public Prosecutor, [1981] A.C. 648, 670 (P.C.) (appeal taken from Singapore); Attorney-General of the Gambia v. Momodou Jobe, [1984] 1 A.C. 689, 700 (P.C.) (appeal taken from Gambia); Attorney General of St. Christopher, Nevis & Anguilla v. Reynolds, [1980] 2 W.L.R. 171, 182 (P.C) (appeal taken from West Indies); Mustapha v. Mohammad, [1987] L.R.C. (Const.) 16, 108 (H.C) (Tan, J.) (Malaysia); Regina v. Big M Drug Mart Ltd. [1985], 18 D.L.R. 321, 359-60 (Can.) (Dickson, J.); Regina v. Oakes [1986], 26 D.L.R. 200, 201 (Can.) (Dickson, CJC); Nafiu Rabiu v. The State, [1981] 2 NCLR 293, 321, 326 (Nigeria); Archbishop Okogie v. Attorney General of Lagos State, [1981] 2 NCLR 337, 348, 53 (Nigeria); Bronik Motors Ltd. v. Wema Bank Ltd., [1983] 1 SCNLR 296, 321 (Nigeria); Savannah Bank of Nigeria Ltd. v. Ajilo, [1989] 1 NWLR 97 305, 326 (Nigeria). See generally Chuks Okpaluba, JUDICIAL APPROACH TO CONSTITUTIONAL INTERPRETATION IN NIGERIA 13 16, 159-65, 375-79, 529-56 (1992); G.E. DEVENISH, A COMMENTARY ON THE SOUTH AFRICAN BILL OF RIGHTS 585 (1999) (discussing the South African and Namibian cases and the relevant literature); Janet Kentridge & Derek Spitz, Interpretation, CONSTITUTIONAL LAW OF SOUTH AFRICA Ch. 11 (Chaskalson et al. eds., 1998).

(128.) See Njoya, (2004) 4 LRC at 576, para. c.

(129.) State v Zuma, 1995 (2) S.A. 642 (CC) (S. Aft.)

(130.) Id. at 652, paras. 17-18.

(131.) IAIN CURRIE & JOHAN DE WAAL, THE BILL OF RIGHTS HANDBOOK 148 (2005).

(132.) See. e.g., S. AFR. CONST. 1996, [section] 9 (equality), [section] 10 (dignity).

(133.) S. AFR. CONST. 1996, pmbl.

(134.) See id.

(135.) Ex-Parte Attorney General." In Re Corporal Punishment by Organs of State (1991) (3) S.A. 76 (NmSC) (Namibia).

(136.) Id. at 91, paras, d-f.

(137.) See, e.g., Anne Lise Kjaer & Lene Palsbro, National Identity and Law in the Context of European Integration: The Case of Denmark, 19 DISCOURSE & SOC'Y 599 (2008) (arguing that cultural identity discourse in Denmark is shaping the legal response to European integration). See generally PATRICK HANAFIN St. MELISSA S. WILLIAMS, IDENTITY, RIGHTS AND CONSTITUTIONAL TRANSFORMATION (1999).

(138.) See, e.g., Timothy Njaya v. Attorney General, (2004) 4 LRC 574 para. g, 576 para. b.

(139.) Id. at 576, paras. f-g.

(140.) Id. at 580, para. i.

(141.) Id. para. g.

(142.) See, e.g., U.S. CONSTITUTION (1876); S. AFR. CONST. 1996; CONSTITUTION (2010) (Kenya).

(143.) See Thurgood Marshall, Reflections on the Bicentennial of the United States Constitution, 101 HARV. L. REV. 2 (1987) (discussing the meaning of the first three words in the preamble of the U.S. Constitution).

(144.) See CONSTITUTION, art. 1 (2010) (KENYA).

(145.) See Abraham Lincoln's First Inaugural Address, in, AMERICAN CONSTITUTIONAL LAW: ESSAYS, CASES AND COMPARATIVE NOTES 1050 (Donald P. Kommers et al. eds., 2004).

(146.) See Duncan Ivison, Pluralism and the Hobbesian Logic of Negative Constitutionalism, 47 POE. STUD. 83, 84 (1999).

(147.) See, e.g., Zoran Oklopcic, The Paradox of Constitutionalism: Constituent Power and Constitutional Form, 6 ICON 358 (2008) (describing the "circular' nature of a people's constituent power as resident in their identity, which may, in turn, have territorial significance in international law).

(148.) See Hans Lindahl, Constituent Power and Reflexive Identity: Towards an Ontology of Collective Selfhood, in THE PARADOX OF CONSTITUTIONALISM: CONSTITUENT POWER AND CONSTITUTIONAL FORM 23 (Martin Loughlin & Neil Walker eds., 2007). Hans Lindahl is a Professor of philosophy at Tilburg University.

(149.) Id.

(150.) See Timothy Njoya v. Attorney General, (2004) 4 LRC 559, 583, para. b (Kenya HC).

(151.) B.O. NWABUEZE, PRESIDENTIALISM IN COMMONWEALTH AFRICA 392 (1974).

(152.) Id. at 393.

(153.) Individuals who went to the Lancaster Constitutional conference in the early 1960s, such as Oginga Odinga, Masinde Muliro, Ronald Ngala, Kiano and Tom Mboya, were themselves elected representatives serving in the Legislative Council. See B.A. Ogot, The Decisive Years 1956 1963, in DECOLONIZATION & INDEPENDENCE IN KENYA 1940-93 48, 60-61 (B Ogot and W Ochieng eds., 1995).

(154.) See Chris Maina Peter, The Magic Wand in Making Constitutions Endure in Africa: Anything (Lessons) to Learn from East Africa, 6 AFR. & ASIAN STUD. 511, 522 (2007).

(155.) S.A. DE SMITH, THE NEW COMMONWEALTH AND ITS CONSTITUTIONS 106 (1964).

(156.) The principle of judicial review is also based on this notion. See JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW 1 (1938).

(157.) See Timothy Njoya v. Attorney General, (2004) 4 LRC 559, 582, para. g (Kenya HC).

(158.) B.O. NWABUEZE, supra note 151, at 393.

(159.) Njoya, 4 LRC at 581, para. i.

(160.) Id.

(161.) See id. at 582, para. g.

(162.) Id. at 611.

(163.) Id. at 583, para. d.

(164.) See Philip O. Nyinguro & Eric E. Otenyo, Social Movements and Democratic Transitions in Kenya, 42 J. ASIAN & AFR. STUD. 5, 18 (2007).

(165.) See East Africa: Kibaki Acts to Head Off July 3 Protests, ALLAFRICA.COM, (June 29, 2004), http://allafrica.com/stories/200406290299.html; Morris Odhiambo, Constitutionalism Under A "Reformist" Regime in Kenya: One Step Forward, Two Steps Backward, in CONSTITUTIONALISM IN EAST AFRICA: PROGRESS CHALLENGES AND PROSPECTS 51, 76 (Lawrence M. Mute ed., 2007).

(166.) See Morris Odhiambo, supra note 165, at 76.

(167.) Id. at 77.

(168.) Id.

(169.) Id.

(170.) See Bannon supra note 12, at 1839.

(171.) Kenya Review (Amendment) Act 2004, [section] 27(6,7).

(172.) Id. [section] 28B(5).

(173.) See Cotrell & Ghai, supra note 63, at 16; Bannon, supra note 12, at 1839; Said Yahya-Othman & Joseph Sinde Warioba eds., MOV|NG THE KENYA CONSTITUTION REVIEW FORWARD: REPORT OF THE FACT-FINDING MISSION TO KENYA, 8 (2007), http://www.kituochakatiba.org/index2.php?option=com_docman&task-doc_view&gid=11196&Itemid=27.

(174.) (2005) 3 K.L.R. 84 (H.C.K.).

(175.) The disputed sections of the Act were [section][section] 4, 5. See id. at 95-98.

(176.) Id. at at 96, para. 30.

(177.) Id. at 98, para. 1. It is noteworthy that although the Kenyan Constitution, unlike the South African one, does not have a general provisions guaranteeing right of access to judicial remedy, it is inferred from the right to seek enforcement of fundamental rights contained in the Bill of Rights. In South Africa, the right, which is contained in Section 34, has generated a body of jurisprudence that now gives it a concrete meaning. See, e.g., Metcash Trading Ltd. v. Commissioner, South African Revenue Services, (2001) (1) S.A. 1109 (CC); Chief Lesapo v Northwest Agricultural Bank, (2000) (1) S.A. 409 (CC); First National Bank of South Africa Ltd. v. Land Agricultural Bank of South Africa, (2000) (3) SA 626 (CC); Contra Peens v Minister of Safety and Security, (2000) (4) SA 727 (T).

(178.) Patrick Ouma Onyango v. Attorney General, (2005) 3 K.L.R. 84, 123, para. 30 (H.C.K.).

(179.) Mat 152, para. 10.

(180.) See, e.g., S. AFR. CONST. 1996 [section] 165 (expressly vests judicial authority on courts). For a discussion of the concept of judicial power in Kenya see Laurence Juma, Institutions of African Law and Justice Administration in Kenya, 17 LESOTHO L.J. 1, 22 (2007); Chuks Okpaluba, Constitutionality of Legislation Relating to the Exercise of Judicial Power (Part I): The Namibian Experience in Comparative Perspective, J. S. AFR. L. 308 (2002).

(181.) See Chuks Okpaluba, Justiciability and Constitutional Adjudication in the Commonwealth: The Problem of Definition (1), 66 THRHR 424, 429 (2003).

(182.) See Jonathan R. Siegel, A Theory of Justiciability, 86 TEX. L. REV. 73 (2007).

(183.) See Chuks Okpaluba, Standing to Challenge Governmental Acts: Recent Case Law Arising from South Africa's Constitutional Experiment, 1 SPECULUM JURIS 205 (2002); Chuks Okpaluba, Justiciability and Standing to Challenge Legislation in the Commonwealth: A Tale of the Traditionalists and Judicial Activist Approaches, 36 COMP. & INT'L L.J.S. AFR. 25 (2003) [hereinafter Okpaluba, Justiciability and Standing].

(184.) Gouriet v. H.M. Attorney-General, [1978] A.C. 435 (HL).

(185.) Id. at 477; see also Victorian Council of Civil Liberties Inc. v Minister of Immigration & Multicultural Affairs [2001] FCA 1297 (Austl.).

(186.) J.J. Campos v. ACL DeSouza, (1933) 15 K.L.R. 86.

(187.) (1989) eKLR (H.C.K.). See also Juma, supra note 104, at 194; Patricia K. Mbote, Towards Greater Access to Justice in Environmental Disputes in Kenya." Opportunities for Intervention (Int'l Envtl. Law Research Ctr. Working Paper 2005-1), available at http://www.ielrc.org/content/w0501.pdf.

(188.) (2001) eKLR (H.C.K.).

(189.) High Court Civil Case No. 464 of 2000, Nakuru (Unreported). The case is also discussed in Alnashir Visram, Review of Administrative Decisions of Government by Administrative Courts or tribunals, a paper that was presented at the 10th Congress of International Association of Supreme Administrative Jurisdictions, Sydney Australia (Mar. 2010), http://www.aihja.org/images/users/1/files/kenya.en.0.pdf?PHPSESSID=f83dg63dqj61vokoep4kk44fu.

(190.) [1974] 1 S.C.R. 138. (Can.).

(191.) Id. at 150.

(192.) See also Canadian Council of Churches v. Canada, [1992] 1 S.C.R. 236, 253 (denying applicants who were representatives of churches standing to challenge the validity of certain provisions in the Immigration Act of 1976); cf. Re Canadian Bar Association v. British Columbia Attorney General (1993), 101 D.L.R. 4th 410 (Can.); Vriend v. Alberta (1998), 156 D.L.R. 4th 385 (Can.). In Canadian Bar, a provincial bar association and the Law Society challenged the validity of an act that imposed responsibility on their members to collect social service tax from clients. In Vriend, gay and lesbian organizations challenged an act which had omitted sexual orientation as one of the grounds for prohibited discrimination. In both cases the court found that the organizations had standing. See Okpaluba, Justiciability and Standing, supra note 183, at 56-57.

(193.) For the subsequent developments of post-Charter Canadian case law, see Okpaluba, Justiciability and Standing, supra note 183, at 54-63.

(194.) El-Busaidy v. Commissioner of Lands, (2002) 1 K.L.R. 479 (H.C.K.).

(195.) Id. at 487, para. 20.

(196.) The rule provides as follows:

(1) Where there are numerous persons having the same interest in one suit, one or more of such persons may sue or be sued, or may be authorized by the court to defend in such suit, on behalf of or for the benefit of all persons so interested.

(2) The court shall in such case direct the plaintiff to give notice of the institution of the suit to all such persons either by personal service or, where from the number of persons or any other cause such service is not reasonably practicable, by public advertisement, as the court in each case may direct.

(3) Any person on whose behalf or for whose benefit a suit is instituted or defended under subrule (1) may apply to the court to be made a party to such suit.

Civil Procedure Act, LAWS OF KENYA, Ch. 21 (2009), available at http://www.kenyalawreport.co.ke/Downloads/Acts/The%20Civil%20Procedure%20Act.pdf.

(197.) High Court Civil Case No. 1 of 1996 (Unreported).

(198.) (1996) eKLR (H.C.K.).

(199.) Albert Ruturi v. Attorney General, (2002) 1 K.L.R. 54.

(200.) See El-Busaidy v. Commissioner of Lands, (2002) 1 K.L.R. 479, 489, 495, 499 (H.C.K.).

(201.) Id. at 500.

(202.) See Ruturi, (2002) 1 K.L.R. at 67.

(203.) See El-Busaidy, (2002) 1 K.L.R. at 500, para. 5.

(204.) Id. para. 30.

(205.) Id. at 501, para. 5.

(206.) See Albert Ruturi v. Attorney General, (2002) 1 K.L.R. 54, 70.

(207.) Mureithi v. Attorney General, (2006) 1 K.L.R. 707 (HC).

(208.) Id. at 708, para. 30.

(209.) The court chose to rely on English cases such as R v Secretary of State for the Environment ex parte Rose Theatre Trust Co (1990) 1 QB 504 and R v Legal Aid Board ex parte Bateman (1992) 1 WLR 711.

(210.) These provisions generally require that the representatives obtain leave of the court and issues notice to all interested parties. See Patrick Ouma Onyango v. Attorney General, (2005) 3 K.L.R. 84, 170 para. 25 (H.C.K.).

(211.) Id. at 170, para35.

(212.) Id.

(213.) Id. at 171,para 1.

(214.) Id.

(215.) Some American scholars seem to think that the doctrine is on the decline. See, e.g., Jesse H. Choper, The Political Question Doctrine: Suggested Criteria, 54 DUKE L. J. 1457 (2005) (arguing that the Supreme Court, as evidenced by its decision in Bush v. Gore, 531 U.S. 98 (2000), has demonstrated that there are a few matters in which it may decline jurisdiction); Rachel E. Barkow, More Supreme than Court? The Fall of the Political Question Doctrine and the Rise of Judicial Supremacy, 102 COLUM. L. REV. 237, 240 (2002) ("IT]he demise of the political question doctrine is of recent vintage, and it correlates with the ascendancy of a novel theory of judicial supremacy."); Mark V. Tushnet, Law and Prudence in the Law of Justiciability: The Transformation and Disappearance of the Political Question Doctrine, 80 N.C.L. REV. 1203, 1233 (2002) (contrasting the Warren Court's assertion of judicial supremacy and use of prudential decision making with that of the Rehnquist Court).

(216.) Marbury v. Madison, 5 U.S. 137 (1803).

(217.) Id. at 170.

(218.) Id.

(219.) Id. at 166.

(220.) See Walter Dellinger & H. Jafferson Powell, Marshall's Questions, 2 GREEN BAG 375 (1999).

(221.) Barkow, supra note 215, at 254-55 (citing Honorable John Marshall, Speech (Mar. 7 1800) in 18 U.S. (5 Wheat) app. Note 1 at 16-17 (1820)).

(222.) Barkow, supra note 215, at 254-55.

(223.) See, e.g., Bush v Palm Beach County Canvassing Board 531 U.S. 70 (2000); Bush v Gore 531 U.S. 98 (2000).

(224.) See CONSTITUTION, [section][section] 60, 67 & 84 (1963) (Kenya).

(225.) Baker v. Carr, 369 U.S. 186 (1962).

(226.) Id. at 217.

(227.) See Choper, supra note 215, at 1462-63.

(228.) Id. at 1463-65.

(229.) Id. at 1465-69.

(230.) Id. at 1466.

(231.) Id.

(232.) Id. at 1463.

(233.) Id. at 1470.

(234.) Id. at 1463.

(235.) Patrick Ouma Onyango v. Attorney General, (2005) 3 K.L.R. 84, 160, para. 25 (H.C.K.).

(236.) See Timothy Njoya v. Attorney General, (2004) 4 LRC 559, 611 (Kenya HC).

(237.) Onyango, (2005) 3 K.L.R. at 129 para. 15.

(238.) Id. at 162, para. 25.

(239.) Id.

(240.) Id. at 162, para. 30.

(241.) Id.

(242.) Bannon, supra note 12, at 1838.

(243.) See Gladwel Otieno, The NARCs Anti-Corruption Drive in Kenya: Somewhere Over the Rainbow?, 14 AFR. SECURITY REV. 69 (2005); John Githongo, Report on my Findings of Graft in the Government of Kenya, BBC NEWS (2005), http//www.news.bbc.co.uk/1/shared/bsp/hi/pdfs/09_02_06_ kenya_report.pdf; Gray Phombeah, Corruption Haunts Kenyan Leader, BBC NEWS (Feb. 23, 2005, 9:23 AM), http://news.bbc.co.uk/2/hi/africa/4288595.stm; Letitia Lawson, The Politics of Anti-Corruption Reform in Africa, 47 J. MOD. AFR. STUD. 73, 78-83 (2009).

(244.) Cotrell & Ghai, supra note 63, at 16.

(245.) Id.

(246.) See Gabriella Lynch, The Fruits of Perception. Ethnic Politics and the Case of Kenya's Constitutional Referendum, 65 AFR. STUD. 233, 240 (2006).

(247.) Id.

(248.) In the referendum held on November 21, 2005, 57% of the voters rejected the draft. Bard Andres Andreassen & Arne Tostensen, Of Oranges and Bananas: The 2005 Kenya Referendum on the Constitution 6 (Chr. Michelsen Inst., Working Paper No. 13, 2006), available at http://www.cmi.no/ publications/file/2368-of-oranges-and-bananas.pdf; Mwangi S. Kimenyi & William F. Shughart, The Political Economy of Constitutional Choice: A Study of the 2005 Kenyan Constitutional Referendum, 21 CONST. POL. ECON. 1 (2010).

(249.) See Henry Amadi, Kenya's Grand Coalition Government--Another Obstacle to Urgent Constitutional Reform?, 44 AFR. SPECTRUM 153 (arguing that the Wako Draft was rejected partly because it was associated with the interests of those from President Kibaki's ethnic group); Lynch, supra note 246, at 240.

(250.) See Juma, supra note 83, at 191-92.

(251.) 'Majimbo' represented to many in the Kibaki faction a devolved system of government that they opposed from the beginning.

(252.) See Cotrell & Ghai, supra note 63, at 18.

(253.) Jesse Kamau & 25 Others v. Attorney General & 2 Others, (2010) eKLR (HC) http://kenya law.org/Downloads_FreeCases/73988.pdf.

(254.) For details on the Majimbo debate, see Anderson, supra note 112. See also Ghai & McAuslan, supra note 29, at 218; E.S. Atieno-Odhiambo, Democracy and the Ideology of Order in Kenya, in THE POLITICAL ECONOMY OF KENYA 177 (Michael G. Schatzberg ed., 1987).

(255.) See Nic Cheeseman, The Kenyan Election of 2007: An Introduction, 2 J.E. AFR. STUD. 166, 175 (2008).

(256.) Clark C. Gibson & James D. Long, The Presidential and Parliamentary Elections in Kenya, December 2007, 28 ELECTORAL STUDIES 349 (2009).

(257.) See Jacqueline Klopp & Prisca Kamungi, Violence and Elections: Will Kenya Collapse? 24 WORLD POL'Y J. 11 (2008); Maarit Makinen & Mary Kuria, Social Media and Post-Election Crisis in Kenya, 13 INT'L J. PRESS/POLITICS 328, (2008); Michael Chege, Kenya: Back from the Brink?, 19 J. DEMOCRACY 125 (2008); Axel Harneit-Sievers & Ralph-Michael Peters, Kenya's 2007 General Elections and its Aftershocks, 43 AFRIKA SPECTRUM 133 (2008); Herve Maupeu, Revisiting Post-Election Violence, in THE GENERAL ELECTIONS IN KENYA 187 (J6r6me Lafargue ed., 2009).

(258.) See John Githongo, Fear and Loathing in Nairobi: The Challenge of Reconciliation in Kenya, 89 FOREIGN AFF. 2, 3 (2010).

(259.) See Tim Muriithi, Post-Accord Kenya: Between Fragile Peace and Constitutional Renewal, Briefing, INTERAFRICA GROUP (July 2008), http://interafricagroup.org/pdf/Human%20Security%20 Program/Briefing10.pdf.

(260.) See The National Accord and Reconciliation Act No. 4 (2008), available at http://www. kenyalaw.org/klr/fileadmin/pdfdownloads/Acts/NationalAccordandReconcilliationNo4of2008.pdf; see also Monica Juma, African Mediation of the Kenyan Post 2007 Election Crisis, 27 J. CONTEMP. AFR. STUD. 407, 425-26 (2009); G.M. Musila, Options for Transitional Justice in Kenya." Autonomy and Challenges of External Prescription, 3 INT'L J. TRANSITIONAL JUSTICE 445, 446 (2009).

(261.) The National Accord and Reconciliation Act was passed on March 18, 2008. Kenyan Leader Signs Power-Share Law, AL-JAZEERA (Mar. 18, 2008, 11:30 PM), http://english.aljazeera.net/news/ africa/2008/03/200852514721316663.html.

(262.) The Constitution Amendment Act, (2008) KENYA GAZETTE SUPPLEMENT No. 14.

(263.) For example, the first amendment of the Constitution of Kenya Review Act (1997) came when the Act was barely a year old, to allow for the participation of a wider section of the Kenyan society in the constitutional review process. See Juma supra note 1, at 511. The amendment in 2000 paved way for the establishment of the Ghai led Constitution of Kenya Review Commission ("CKRC'). In 2001, it was again amended to accommodate the merger between the CKRC and the Ufungamano Commission. See Henry Amadi, Persistence and Change of Neo-Patrimonialism in Post-Independence Kenya 4-5 (2009), available at http://www.giga-hamburg.de/dl/download.php?d=/ content/fsp1/pdf/amadi_neo_patrimonialism_paper.pdf.

(264.) See Paul Collier & Njunguna S. Ndungu, Strategies for Growth, in KENYA: POLICIES FOR PROSPERITY 15, 33 (Christopher S Adam et al eds., 2010).

(265.) See Amadi, supra note 249, at 154.

(266.) Constitution of Kenya Review Act (2008).

(267.) See Kithure Kindiki, The Emerging Jurisprudence in Kenya's Constitutional Review Law, 1 KENYA L. REV. 153, 156 (2007), http://78.136.28.31/klr/fileadmin/pdfdownloads/Kindiki Paper.pdf.

(268.) See Constitution of Kenya (Amendment) Bill 2008, available at http://marsgroupkenya.org/ pdfs/2008/ march_2008/Constitution_of_kenya_amendment_bill_2008.pdf; see also Parliamentary Developments, 1 THE WORLD OF PARLIAMENTS QUARTERLY REVIEW No. 30 (July 2008), http://www. ipu.org/news-e/wop/30/9.htm.

(269.) The first amendment created the Office of Prime Minister to give Raila Odinga a parallel executive authority as envisaged in the National Accord.

(270.) Constitution of Kenya (Amendment) Bill (Aug. 2008), http://www.marsgroupkenya.org/ pdfs/2009/08/Bills/2008/TheConstitution of Kenya(Amendment) Bill 2008_2.pdf.

(271.) Constitution [section] 47(6)(b) (1963) (Kenya).

(272.) See Timothy Njoya v. Attorney General, (2004) 4 LRC 559,592, para. a (Kenya HC).

(273.) A.I.R. 1973 S.C. 1461 (India).

(274.) Njoya, 4 LRC at 590, para. d (quoting Kesavananda v. State of Kerala, A.I.R. 1973 S.C. 1461, 1860).

(275.) Id. at 592, para. b.

(276.) Id. at 624.

(277.) See Kithure Kindiki, The Emerging Jurisprudence, supra note 267, at 156.

(278.) Patrick Ouma Onyango v. Attorney General, (2005) 3 K.L.R. 84, para. 40 (H.C.K.).

(279.) Id. at 169, para. 30.

(280.) Id. at 146, at para. 15.

(281.) Id. at 149, paras. 1-20.

(282.) Id. at 174, para. 10.

(283.) Constitution of Kenya (Amendment) Bill (Aug. 2008), supra note 270.

(284.) Id [section] 47A (3).

(285.) Id. [section] 47A (4).

(286.) Id[section] 47A(5)(b)(i)-(ii).

(287.) Id. [section] 47A (6).

(288.) Constitution of Kenya (Amendment) Act No 10, 2008.

(289.) Id [section] 60A(1).

(290.) See Gibson Kamau Kuria, Parliament Is Usurping Power of Kenyans, CAPITAL FM NEWS (Nairobi) (Dec. 9, 2008), http://beta.capitalfm.co.ke/news/2008/12/09/parliament-is-usurping-powerfrom-kenyans/.

(291.) Id.

(292.) See Constitution of Kenya (Amendment) Bill (2009), available at http://www.kenya law.org/Downloads/Bills/2009/The_Constitution_of_Kenya_(Amendment)_Act_2009.pdf.

(293.) Id, [section] 3A(1).

(294.) Six Judges Now Sworn in to Hear Constitution Review Disputes, E. AFR. STANDARD (Nairobi) (Jan. 16, 2010), http://www.standardmedia.co.ke/news/InsidePage.php?id=2000001063& cid=159&. The judges appointed were Samuel Mukunya, Violet Mavisi, Scholastica Omondi, Jamila Mohamed, Sankale ole Kantai, and Mbumgu Kioga.

(295.) (2010) eKLR, http://kenyalaw.org/Downloads_FreeCases/75044.pdf; see also J. Kadida & O. Mathenge, Prisoners Will Cast Vote at Referendum, DAILY NATION (Nairobi), Aug. 15, 2010.

(296.) The Electoral Commission of Kenya had been created under Section 41 of the 1963 Constitution. Under that Constitution, the power to appoint members of the Commission was solely vested on the President. At the time of disbandment, it was headed by the disgraced chairman, Samuel Kivuitu.

(297.) See Susanne D Mueller, Dying to Win: Elections, Political Violence and Institutional Decay in Kenya, 29 J. CONTEMP. AFR. STUD. 99, 107 (2011) (noting that behind all the institutional changes, including the setting up of IIEC to replace ECK, "the incentives that guide political life are much the same", and that politicians will still be concerned with "positioning themselves and their ethnically rooted parties" for political gains).

(298.) See Donald B. Kipkorir, Why Kivuitu Must Be Held Accountable for Poll Chaos, DAILY NATION (Nairobi) (Jan. 5, 2008), http://www.nation.co.ke/Features/-/1190/224838/-/tn4ui0z/-/index.html.

(299.) Constitution of Kenya (Amendment) Act 2008.

(300.) See PLO Lumumba, Electoral Justice: The Antidote for Post Election Violence in Kenya, in REFLECTIONS ON CITIZENSHIP, VIOLENCE AND THE 2007 GENERAL ELECTION IN KENYA 147, 158 (Kimani Njogu ed., 2011).

(301.) See Henry Amadi, Kenya's Grand Coalition Government--Another Obstacle to Urgent Constitutional Reform?, 44(3) AFR. SPECTRUM 149, 154 (2009).

(302.) Article 41A, CONSTITUTION, an. 41A (2010) (Kenya).

(303.) Id art. 41(13).

(304.) Those appointed to the commission were Mr Ahmed Issack Hassan, as the Chairperson, while Douglas Mwashigadi, Tiyah Galgalo, Hamara Ibrahim Adan, Kennedy Nyaudi, Dr. Yusuf Nzibo, Winfred Waceke Guchu, Davis Chirchir, and Abiud Wasike. President Appoints Members of the Interim Independent Electoral Commission, STATE HOUSE, NAIROBI KENYA (May 07, 2009), http://www.statehousekenya.go.ke/news/may09/2009070501.htm.

(305.) Constitution of Kenya Review Act No 9 (2008), http://marsgroupkenya.org/pdfs/2010/01/ The_Constitution_of_Kenya_Review_Act_2008.pdf.

(306.) The Constitution of Kenya Review Act No. 9 (2008) [section] 28.

(307.) Id. [section] 33 (4).

(308.) Id. [section] 34.

(309.) Id. [section] 37.

(310.) Id. [section] 43.

(311.) Id.[section] 12.

(312.) The Constitution of Kenya Review Act No. 9 (2008) [section] 14.

(313.) Id [section] 14(7).

(314.) Id.[section] 53.

(315.) REPORT OF THE PARLIAMENTARY SELECT COMMITTEE ON THE REVIEW OF THE CONSTITUTION ON THE HARMONISED DRAFT CONSTITUTION, KENYA NATIONAL ASSEMBLY 2 (2010) [hereinafter HARMONISED DRAFT CONSTITUTION], available at http://www.constitutionnet.org/files/ report_of_psc-_naivasha_retreat-final1_0.pdf.

(316.) See The Constitution of Kenya Review Act No. 9 (2008) [section] 7 (1).

(317.) The Constitutional Review Commission of Kenya ("CRCK") was established through the Constitution of Kenya Review (Amendment) Act of 2001. See supra Part 1. The Constitution of Kenya Review Act 2008 established the COE to effectively take over the functions of the CRCK whose term had expired. See Grace Maingi, The Kenyan Constitutional Reform Process: A Case Study on the Work of FIDA Kenya in Securing Women's Rights, 15 FEMINIST AFR. 64, 67 (2011).

(318.) See The Constitution of Kenya Review Act No. 9 (2008) [section] 23; Maingi, supra note 317, at 69.

(319.) Those appointed as members of the committee were Nzamba Kitonga, a Kenyan lawyer; Atsango Chesoni, a Kenyan lawyer; Christina Murray, a law professor at Cape Town University; Chaloka Beyani, a law lecturer at the London School of Economics; Fredrick Ssempebwa, a Ugandan academic; Bobby Mkangi, a children's law expert; Njoki Ndungu, a Kenyan politician; Abdirashid Abdullahi, a conflict resolution expert; Otiende Amollo, a Kenyan lawyer; and Amos Wako, Kenya's Attorney General at the time. Dr. Ekuru Aukot was appointed to head the secretariat and as the Director of the Committee. Profiles of Members of the Committee of Experts, COMMITTEE OF EXPERTS ON CONSTITUTIONAL REVIEW, http://www.coekenya.go.ke/index.php?option=com_content&view= section&layout=blog&id=9&Itemid=62 (last visited Aug. 20, 2010).

(320.) See Progress on the Constitutional Review Process by the Committee of Experts as at October 2009, DAILY NATION (Nairobi) (Oct. 26, 2009), http://www. constitutionnet.org/files/CoE_ ProgressReport.pdf.

(321.) The Constitution of Kenya Review Act, (2008) Cap. 9 [section][section] 37, 39.

(322.) Id [section] 44(1).

(323.) Id. [section] 44(3).

(324.) Bishop K. Methu v. Attorney General, High Court (Nairobi), Petition No. 55 of 2009; see also Judy Ogutu, CJ Picks Judges to Hear Suit Against the Law Review Act, THE STANDARD (June 4, 2009), http://www.standardmedia.co.ke/InsidePage.php?id=1144015921&cid=159&; Final Report of the Committee of Experts on Constitutional Review 25 (2010), http://www.ldphs.org.za/resources/1 ocal-government-database/by-country/kenya/commission-reports/CoE_final_report.pdf.

(325.) Judy Ogutu, Stop State from Implementing Act, Says Group, E. AFR. STANDARD (Nairobi) (Jan. 26, 2009), http://www.standardmedia.co.ke/archives/InsidePage.php?id=1144005000&cid=1590.

(326.) Id.

(327.) (2010) eKLR, http://kenyalaw.org/CaseSearch/view_preview1.php?link=44998618174561490945869.

(328.) Id. at 3.

(329.) Id.

(330.) Id. at 4.

(331.) Id.

(332.) Id. at 7.

(333.) Id. at 11.

(334.) Id. at 12. It should be noted that the court relied on the earlier case of Bishop K. Methu v. Attorney General, High Court (Nairobi), Petition No. 55 of 2009.

(335.) Up to this point, there had been several drafts of the Constitution. The main ones, which the Constitution of Kenya Review Act 2008 had directed the Committee to look at, were the Constitution of Kenya Review Commission Draft (2004), Draft Constitution of Kenya (2004) (Bomas Draft), and the Proposed New Constitution of Kenya (2005) (Wako Draft). See Constitution of Kenya Review Act 2008, [section] 29 (b)-(c); COMMITTEE OF EXPERTS ON CONSTITUTIONAL REVIEW, FINAL REPORT OF THE COMMITTEE OF EXPERTS ON CONSTITUTIONAL REVIEW 39 (2010), available at http://www.ldphs .org.za/resources/local-government-database/by-country/kenya/commission-reports/CoE_final_report .pdf.

(336.) The call for public views was published in the daily newspapers. See COMMITTEE OF EXPERTS ON CONSTITUTIONAL REVIEW, INVITATION FOR PROPOSALS ON CONTENTIOUS ISSUES, available at http://www.constitutionnet.org/files/Invitation%20for%20Proposals%20on%20Content ious%201ssues.pdf.

(337.) Id.

(338.) See Amadi, supra note 301, at 156.

(339.) See David Anderson, supra note 112; Walter Oyugi, Uneasy Alliance." Party State Relation in Kenya, in POLITICS AND ADMINISTRATION IN EAST AFRICA 153 (Walter Oyugi ed., 1994).

(340.) See Amadi, supra note 301, at 157.

(341.) See COMMITTEE OF EXPERTS ON CONSTITUTIONAL REVIEW, REPORT ISSUED ON THE SUBMISSION OF THE REVIEWED HARMONIZED DRAFT OF THE CONSTITUTION TO THE PARLIAMENTARY SELECT COMMITTEE ON CONSTITUTIONAL REVIEW 14 (2010), available at http://www.ldphs.org.za/ resources/local-government-database/by-country/kenya/commission-reports/Final_Report_on_the_ Reviewd_Drafl.pdf.

(342.) See COMMITTEE OF EXPERTS ON CONSTITUTIONAL REVIEW, HARMONISED DRAFT CONSTITUTION OF KENYA (2009), available at http://www.africanrealitiesinstitute.com/downloads/ Harmonized Draft Constitution.pdf.

(343.) Id. [section] 157-160.

(344.) Id. [section] 179.

(345.) Id. [section] 180.

(346.) Id. [section] 123.

(347.) Id. [section] 139.

(348.) Id. ch. 14. A schedule of separate functions of each level of government was spelled out in the annexure to the constitution.

(349.) Id. [section][section] 215-227.

(350.) Id. [section] 223.

(351.) Constitution of Kenya Review Act 2008, [section] 33(1).

(352.) Susan Anyangu-Amu, Clash over Abortion Rights in New Constitution, IPS NEWS (Jan. 14, 2010), http://ipsnews.net/news.asp?idnews=49984.

(353.) See Mohammed Mraja, Kadhis Court in Kenya: Current Debates on the Harmonised Draft Constitution of Kenya, a paper presented at the conference on Kadhi's Courts Debate in Kenya Constitutional Review Process, Cape Town, Mar. 20, 2010, http://www.cci.uct.ac.za/usr/cci/news/ big/Limuru_Kenya_Papers.pdf#page-5.

(354.) Lawrence Murugu Mate, Shattering the Glass: Ensuring the Right to Vote for Persons with Intellectual Disabilities in Kenya, 2 THOUGHTS & PRACTICE J. OF THE PHILOSOPHICAL ASS'N OF KENYA 1 (2010).

(355.) See STANDARD TEAM, PNU Disowns Draft, Says R was Doctored, E. AFR. STANDARD (Nairobi) (Jan. 13, 2010), http://standardmedia.co.ke/archives/columnists/InsidePage.php?id=20000 00931&cid=4&.

(356.) See Stephen Makabaila, Draft: Will PSC Reach Consensus at Retreat?, E. AFR. STANDARD (Jan. 11, 2010), http://www.standardmedia.co.ke/InsidePage.php?id=2000000808&cid=289&story= Draft:%20Will%20PSC%20reach%20consensus%20at%20retreat?; Anthony Kagiri, Kenya Coalition Partners Differ on Draft, CAPITAL FM NEWS (Dec. 14, 2009), http://www.capitalfm.co.ke/news/ 2009/12/kenya-coalition-partners-differ-on-draft/?wpmp_switcher=mobile.

(357.) See Kenya: PNU Deletes TSC, NSIS in Naivasha, NAOROBI STAR (Jan. 27, 2010), http:// allafrica.com/stories/201001270166.html?viewall=1.

(358.) Id.

(359.) See Paul Mwaura, Kenya Moves Closer to Releasing a New Constitution After Two Decades of Waiting, NEWS TIME AFRICA (Mar. 2, 2010), http://www.newstimeafrica.com/archives/11099.

(360.) Id.

(361.) See Kenya: Fury as Parliamentary Select Committee "Mutilates" Draft Constitution, THE NORWEGIAN COUNCIL FOR AFRICA (Jan. 21, 2010), http://www.afrika.no/Detailed/19234.html.

(362.) See COMMITTEE OF EXPERTS ON CONSTITUTIONAL REVIEW, supra note 342.

(363.) See, e.g., Timothy Njoya v. Attorney General, (2004) 1 K.L.R. 261 (Kenya).

(364.) See Yash Ghai, Stop "Mutilation" of Kenya Constitution, PAMBAZUKA NEWS (Jan. 28, 2010), http://www.pambazuka.org/en/category/features/61825.

(365.) See KENYA NATIONAL ASSEMBLY, REPORT OF THE PARLIAMENTARY SELECT COMMITTEE ON THE REVIEW OF THE CONSTITUTION ON THE REVIEWED HARMONISED DRAFT CONSTITUTION (2010), available at http://www.constitutionnet.org/files/report_of_psc-_naivasha_retreat-final1.pdf.

(366.) Alex Kiarie, Kenya: Parliament Passes Draft Constitution, VOICES OF AFRICA (Apr. 3, 2010), http://voicesofafrica.africanews.com/site/list_message/26789.

(367.) See Emeka-Mayaka Gakara & Njeri Rugene, Fear of Raila and the Draft Fallout, SUNDAY NATION (Nairobi) (May 29, 2010), http://allafrica.com/stories/201005310205.html.

(368.) See id.

(369.) See Eric Kramon & Daniel N Posner, Kenya's New Constitution, 22 J. DEMOCRACY 89, 92 (2011).

(370.) One example is William Ruto, who was the main architect of the PSC proposal but for selfish reasons had now decided to oppose the draft. See Joel D Barkan & Makau Mutua, Turning the Corner in Kenya, FOREIGN AFFAIRS (Aug. 2010), http://www.fondazionebancodisicilia.it/assets/577,27/Scn37-502-Pdf.pdf (describing Ruto as an "opportunistic and ethnic demagofue whidemagogue who intends to run for president in 2012").

(371.) See Robyn Dixon, Kenya's Vote on Constitution May Renew Tribal Conflicts, L.A. TIMES (Aug. 3, 2010), http://articles.latimes.com/2010/aug/03/world/la-fg-kenya-election-20100804; see also A Chance to Improve How Kenya is Run, THE ECONOMIST (July 29, 2010), http://www.economist .com/node/16703331.

(372.) Jesse Kamau v. Attorney General, (2010) eKLR, http://kenyalaw.org/ Downloads Free Cases/73988.pdf.

(373.) See Caroline Rwenji, Kadhi Court Case was Filed in 2004, DAILY NATION (Nairobi) (May 24, 2010), http://www.nation.co.ke/News/politics/Kadhi%20courts%20case%20was%20filed%20in% 202004%20/-/1064/925130/-/11qljpy/-/index.html.

(374.) The Commission chaired by Yash Ghai had become defunct after the enactment of Constitution of Kenya Review Act of 2004. See CKRC, FINAL REPORT OF THE CONSTITUTION OF KENYA REVIEW COMMISSION (Feb. 10, 2005), http://www.ldphs.org.za/resources/local-government-database/by-country/kenya/commission-reports/Main%20report%20CKRC%202005.pdf.

(375.) See Anne Cussac, Muslims and Politics in Kenya: The Issue of Kadhis' Courts in the Constitution Review Process, 28 J. MUSLIM MINORITY AFF. 289 (2008).

(376.) See Jesse Kamau v. Attorney General, (2010) eKLR, at 7 http://kenyalaw.org/Downloads _FreeCases/73988.pdf.

(377.) The Kadhi's Courts Act, (1997) Cap. 11 (Kenya).

(378.) See Jesse Kamau, (2010) eKLR, at 7.

(379.) Id. at 5.

(380.) Id.

(381.) Id. at 50.

(382.) Id. at 5. In the claim, the Applicants averred that the entrenchment of the Kadhis' courts was a stepping stone to more sinister moves: that of introducing Sharia law in Kenya. And that such a move was "retrogressive, discriminatory, dangerous, as far as the stability of the nation was concerned, unjust ... and detrimental to all Kenyans." Also, that it evoked fears of "subterfuge and unconstitutional sabotage."

(383.) Id. at 7; see also Jamil Ddamulira Mujuzi, Separating the Church from State: The Kenyan High Court Decision in Jesse Kamau & 25 Others v Attorney General, 55 J. AFR. L. 314 (2011)

(384.) Id. at 8.

(385.) Id. at 11.

(386.) Id. at 12, 17.

(387.) It may be worth noting here that the establishment of Kadhis Courts in Kenya has a long history that stretches from the days of colonialism. For a general discussion of the evolution of these courts, see GHAI & McAUSLAN, supra note 29; Eugene Cotran, The Development and Reform of the Law in Kenya, 27 J. AFR. L. 42 (1983); and James R. Brennan, Lowering the Sultan's Flag: Sovereignty and Decolonization in Coastal Kenya, 50 COMP. STUD. SOC'Y & HIST. 831 (2008). See also J.B. Ojwang & J.A. Otieno-Odek, The Judiciary in Sensitive Areas of Public Law." Emerging Approaches to Human Rights Litigation in Kenya, 35 NETH. INT'L L. REV. 29 (1988).

(388.) Id. at 4.

(389.) Id.

(390.) Id. at 80.

(391.) Jesse Kamau v. Attorney General, (2010) eKLR, at 43, http://kenyalaw.org/Downloads_ FreeCases/73988.pdf.

(392.) Id. at 89.

(393.) Id. at 88.

(394.) Id. at 89. The impugned sections of the Kadhis' Courts Act are 3 and 4.

(395.) Id. at 44, 80. See also Jamil Ddamulira Mujuzi, supra note 383, at 318.

(396.) See Jesse Kamau, supra note 372, at 43.

(397.) See e.g. Richard Allen Green, Kenya's Churches Unite Against Draft Constitution, CNN World, Aug. 4, 2010, available at http://articles.cnn.com/2010-08-04/world/kenya.constitution .churches_l_draft-constitution-new-constitution-churches?_s=PM:WORLD.

(398.) See Kwendo Opanga, Night Goings-on Will Be Made Public in the Day, SUNDAY NATION (Nairobi), (May 29, 2010), http://www.nation.co.ke/oped/Opinion/Night%20goings%20on%20will %20be%ma.

(399.) See, e.g., Yash Ghai, Why Kenya's Constitution Should Recognise Kadhi's Courts', PAMBAZUKA NEWS (Apr. 29, 2010), http://www.pambazuka.org/en/category/comment/64062; Peter Mwaura, Kenya: Judges Decision on Kadhis Courts" Status was Made on a Knife-edge, ALLAFRICA.COM (May 28, 2010), http://allafrica.com/stories/printable/201005280692.html; see also Judy Ogutu, Kadhis Courts Firestorm, E. AFR. STANDARD (Nairobi) (May 25, 2010), http://www.standardmedia.co.ke/InsidePage.php?id=2000010177&cid=4.

(400.) See Section 15 of the Seventh Schedule (Transitional and Consequential Provisions of the Laws of Kenya), which was made pursuant to Article 312 of the Harmonised Draft Constitution. HARMONISED DRAFT CONSTITUTION, supra note 315. It provides that upon promulgation of the new Constitution, the President must appoint an interim judicial service commission "which shall, in accordance with this section, be responsible for vetting judges in office immediately before the effective date." Id. This section has now been replaced in the new Constitution by Section 23 which allows Parliament a period of one year after promulgation of the Constitution to enact a legislation that will provide for the vetting of the current judges before they can function in a new dispensation. See CONSTITUTION, [section] 12 (2010) (Kenya). As of writing, two bills dealing with judicial reform have been drafted. See Yash Ghai & Jill Cottrel Ghai, Judiciary is the Custodian of the New Constitution, E. AFR. STANDARD (Nairobi) (Dec. 11, 2010), http://www.standardmedia.co.ke/InsidePage.php?id=2000024469&catid=289&a=l.

(401.) See Jiilo Kadida, Kenya's AG Files Appeal Against Kadhi Courts Ruling, THE E. AFRICAN (May 25, 2010), http://www.theeastafrican.co.ke/news/-/2558/925286/-/pejbp6z/-/index.html.

(402.) Makau Mutua, Courts Must Not Be Allowed to Derail Referendum, DAILY NATION (Nairobi) (May 29, 2010), http://www.nation.co.ke/oped/Opinion/Courts%20must%20not%20be%20allowed%20to%20derail%20referendum%20/- /440808/928426/-/18tq7x/-/index.html.

(403.) Id.

(404.) See Adrian Croft, Interview- Kenya PM Blasts Judges Over Ruling, THE STAR ONLINE, (May 29, 2010), http://thestar.com.my/news/story.asp?file=/2010/5/29/worldupdates/2010-05-29T125129Z01_NOOTR_RTRMDNC_0_- 489012-1&sec=Worldupdates.

(405.) Bishop Joseph Kimani & 2 Others v. Attorney General & 2 Others, High Court of Kenya at Mombasa, Petition No 669 of 2009, http://kenyalaw.org/Downloads_FreeCases/Petition_669_of_09_Mombasa_4.pdf.

(406.) See Harold Ayodo, Uphold Constitution, Judge Tells Colleagues, E. AFR. STANDARD (Nairobi) (June 6, 2010), http://www.standardmedia.co.ke/InsidePage.php?id=2000011040&cid=40.

(407.) Id.

(408.) See, e.g., Eunice Machuhi & Jillo Kadida, Judge Rejects' Fresh Case on Kadhi Court, ALLAFRICA.COM (May 31, 2010), http://allafrica.com/stories/201006010162.html.

(409.) Andrew Omtata Okoiti v. Attorney General, (2010) eKLR, http://www.kenyalaw.org/CaseSearch/view_previewl.php?link=86652455280427269782308; see also Bench Bulletin Issue 13: July, NATIONAL COUNCIL FOR LAW REPORTING, Dec. 2010, at 83, available at http://content.yudu.com/Library/A1qd48/TheBenchBulletin13Ju/resources/6.htm.

(410.) Bench Bulletin, supra note 409, at 83.

(411.) Id.

(412.) See Wahome Thuku, Court Dismisses Petition Against Referendum, E. AFR. STANDARD (Nairobi) (Aug. 2, 2010), http://www.standardmedia.co.ke/InsidePage.php?id=2000015268&cid=4&&utm_medium=standrdKeNation&utm_source=standrdkenatio n.com.

(413.) Alice Waithera Mwaura v. Committee of Experts, (2010) eKLR. See Bench Bulletin, supra note 409, at 81.

(414.) Bench Bulletin, supra note 409, at 81.

(415.) Id.

(416.) Id.

(417.) Id.

(418.) (2010) eKLR; see also Bench Bulletin, supra note 409, at 86.

(419.) See Bench Bulletin, supra note 409, at 86.

(420.) Mary Ariviza v. Interim Independent Electoral Commission, High Court (Nairobi) Misc. App. No. 273 of 2010, reported in (2010) eKLR, http://www.kenyalaw.org/CaseSeareh/viewpreviewl.php?link=27902795876845824259815.

(421.) Mary Ariviza v. Interim Independent Electoral Commission, Constitutional Petition No. 7 of 2010, reported in (2010) K.L.R. 88; see also Bench Bulletin, supra note 409; Jilo Kadida & Oliver Mathenge, Kenya: Last Ditch Attempt to Delay Second Republic, ALLAFR1CA.COM (Aug. 20, 2010), http://allafrica.com/stories/201008210119.html.

(422.) Bench Bulletin, supra note 409, at 88.

(423.) Id.

(424.) Id. at 89.

(425.) Id.

(426.) They filed a reference on September 13, 2010. See Mary Ariviza & Another v. Attorney General & Another, Reference No. 7 of 2010,(Final Judgment) (Nov. 30, 2011), http://www.eacj.org/docs/judgements/Mary-Ariviza-Okotch-Mondoh-Vs-AG-Kenya.pdf [hereinafter Reference No. 7 of 2010].

(427.) Article 30(1) of the East African Community Treaty provides:

Subject to the provisions of Article 27 of this Treaty (relating to EACJ's jurisdiction) any person who is resident in a Partner State may refer for determination by the Court, the legality of any Act, regulation, directive, decision or action of a Partner State or an institution of the Community on the grounds that such Act, regulation, directive, decision or action is unlawful or is an infringement of the provisions of this Treaty.

(428.) Treaty Establishing the East African Community, signed on Nov. 30, 1999, entered into force on July 7, 2000, available at http://www4.worldbank.org/afr/ssatp/Resources/HTML/legal review/ Annexes fr/Annexes%20V_fr/Annexe%20V-11.pdf

(429.) App. No. 3 of 2010, THE EAST AFRICAN COURT OF JUSTICE AT ARUSHA, http://www.world courts.com/eacj/eng/decisions/2010.12.01 Ariviza v Attorney General.pdf

(430.) App. No. 3 of 2010, THE EAST AFRICAN COURT OF JUSTICE AT ARUSHA, http://www.eacj .org/docs/Application-No-3-of- 2010.pdf.

(431.) Id. at 5.

(432.) Id.

(433.) Reference No. 7 of 2010, supra note 426, at 28, 29.

(434.) See Ally Jamah, State May Lose Sh10b in Courts, E. AFR. STANDARD (Nairobi) (Dec. 20, 2010), http://www.standardmedia.co.ke/pfint.php?id-2000025167&cid-4.

(435.) See, e.g., Mutua, Justice Under Siege, supra note 22, at 96; see also Hugh Corder, Seeking Social Justice? Judicial Independence and Responsiveness in a Changing South Africa, in JUDICIAL INDEPENDENCE IN THE AGE OF DEMOCRACY: CRITICAL PERSPECTIVES FROM AROUND THE WORLD 194 (Peter H. Russel & David M. O'Brien eds., 2001).

(436.) See Daniel N. Posner, Regime Change and Ethnic Cleavages in Africa, 40 COMP. POL. STUD. 1302 (2007).

LAURENCE JUMA, LL.B. (Nairobi); LL.M. (Pennsylvania); M.A. (Notre Dame); LL.D. (Fort Hare); Associate Professor of Law, Rhodes University, Republic of South Africa.

CHUKS OKPALUBA, LL.B., LL.M. (London) Ph.D. (West Indies), Professor of Law, National University of Lesotho, Adjunct Professor, University of Fort Hare, Republic of South Africa.
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Title Annotation:II. The Battle to Reform Continues 2002-2008: The Changing Role of Courts and the People's Response to Failed Reform B. The Spin-off from the Njoya Decision: Patrick Ouma Onyango v. Attorney General 3. The "Political Question" Doctrine, through Conclusion, with footnotes, p. 326-364
Author:Juma, Laurence; Okpaluba, Chuks
Publication:Washington University Global Studies Law Review
Date:Mar 22, 2012
Words:23960
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