CHAPTER 1

CONCEPTUALISING PEOPLE, SOVEREIGNTY, CONSTITUTION, STATE,

GOVERNMENT, SOCIETY, MARKET, SUSTAINABLE DEVELOPMENT AND
CONSTITUTIONAL DEMOCRACY IN KENYA AND AFRICA [to integrate
checklist….]

This Chapter may be cited as Ben Sihanya (forthcoming 2021) “Conceptualising People,
Sovereignty, Constitution, State, Government, Society, Market, Sustainable Development and
Constitutional Democracy in Kenya and Africa,” in Ben Sihanya (2021) Constitutional
Democracy, Regulatory and Administrative Law in Kenya and Africa (CODRALKA 1) Vol. 1:
Constitutional Text, Structure [Culture?], History, Method, Theory and Systems [checklist], in
Kenya and Africa, Sihanya Mentoring & Sihanya Advocates, Nairobi & Siaya.

1. Introduction to People, Sovereignty, Constitution, State, Government, Society,

Market, Sustainable Development and Constitutional Democracy in Kenya and
Africa
This Chapter conceptualises, problematises and contextualises some of the core variables or
parameters in constitutional democracy in Kenya and Africa. These concepts include people,
sovereignty, constitution, state, government, society, and market in sustainable development and
constitutional democracy.1 The main point of reference or departure is the constitutional text,
structure [culture?], history [practice, tradition, experience], theory, method and systemin Kenya,
South Africa, Nigeria, Uganda and Tanzania. Other states from Africa, North America, Latin
America, and Asia are also studied, especially Ghana, Ethiopia, USA, UK, India, Germany,
France, Australia, China and Japan.

This book seeks to develop an Afro-Kenyanist conceptual, theoretical, methodological and policy
framework. Thus, the following three (3) sets of founding, contemporary and futuristic values,
principles, theories, philosophies and perspectives are problematized, interrogated and integrated.
First, justice and humanism (utu, cf. ubuntu) and human dignity [cf. impact of British and tribal
colonialism] as shield and defender.2 Second, mutual social responsibility as contextualised in
“African socialism, communitarianism or egalitarianism”3and harambee (let’s pool and pull
together).4 Third, shared prosperity which is also rendered as “I am because we are and since we
are, therefore I am….”5

1
See also Chapter 5, CODRALKA 1 on “Theory and Methodology of Comparative Constitutional and Administrative
Law in Kenya and Africa: Law in Sustainable Development.…..
2
See Kenya’s National Anthem, Schedule of the Constitution of Kenya 2010; George Senoga Zake (1986) “Folklore
Music of Kenya,” Uzima Press, Nairobi.
3
See Republic of Kenya (1965) “Sessional Paper No 10 of 1965 on African socialism and its application to planning in
Kenya,” at http://siteresources.worldbank.org/INTAFRICA/Resources/257994-1335471959878/Sessional-Paper-No
10-(1965).pdf (accessed 29/1/2020).
4
Republic of Kenya, ibid.
5
….Utu is defined as humanity (humaneness) or action intended to benefit the general populace. Cf. Christian BN Gade
(2011) “The Historical Development of the Written Discourses on Ubuntu,” Vol. 30(3), South African Journal of
Philosophy, 303-329. Ubuntu as an African philosophy means collectiveness, harmony or togetherness “I am because 1
From March 9, 2018 when Orange Democratic Movement (ODM) Leader and former Prime
Minister Raila Odinga, the “People’s President” had a “handshake” or rapprochement with Jubilee
Party Leader President Uhuru Kenyatta, Kenyans started engaging in broad constitutional,
legislative, policy and administrative reform discussions. This book therefore engages the debates
on the Building Bridges Initiative (BBI) 2019 and 2020 reports and proposals, the proposed
amendments in the Constitution of Kenya (Amendment) Bill 2020, the related BBI and related
reform proposals.

1.1 Conceptualising People and Kenya in Afro-Kenyan Constitutional Democracy We

conceptualise at least three (3) core variables. First, what is Kenya? Second, who are the people of
Kenya? Third, what are the historical, emerging and futuristic debates on the concept of the
people in Afro-Kenyan constitutional democracy?

1.1.1 Kenya in Afro-Kenyan Constitutional Democracy

How is Kenya conceptualized presently? Before and after the promulgation of the Constitution in
2010? In the 1969 Constitution? At the Independence Constitution 1963? During the post-election
violence (PEV) in 2007/2008? What of the “handshake” or period between 2018-2022 and
beyond?

“Kenya” got that name in 1920 when it became a British Colony and protectorate following
complex economic, political, social, technological, military, and juridical adventure, misadventure,
and related processes in statecraft and (limited) nation building.6[Relocate?...] The Devonshire
White Paper referred to Kenya as a “Black man’s country.” This entrenched the idea and sense of
natives belonging naturally within the colonial territories of Kenya.7

The Kenyan and African state is about at least four (4) key variables or phenomena under the
Montevideo Convention on the Rights and Duties of States, 1933. First, state is also about
territory, borders or boundaries and constitutionally democratic8and effective government (Art.
5).9 What is the territorial scope of Kenya?

we are.” It was also one of the nine (9) major proposals contained in the report by the Presidential Taskforce on Building
Bridges to Unity Taskforce, released on October 2019, and the Building Bridges Initiative (BBI) Report 2020. Cf.
Michael Onyebuchi Eze (2017) “I am because You Are: Cosmopolitanism in the Age of Xenophobia,” 46:1,
Philosophical Papers, 85-109
6
See laws declaring Kenya the East African Protectorate in 1895; and colony in 1920. ES Atieno Odhiambo (1940)
“The invention of Kenya,” 93 Decolonisation and Independence in Kenya, 1-3.
7
See Deborah L. Hughes (2006) “Kenya, India and the British Empire Exhibition of 1924,” 47(4), Race & Class, 66-85.
8
“Constitutionally democratic” is part of the Sihanya reconceptualisation of the constitution,state and government, partly
based on the Constitution of Kenya 2010, UN Charter, Universal Declaration on Human Rights (UDHR), as well as
United Nations (UN) and African Union (AU) instruments and popular understanding….
9
See this Chapter 1 of Ben Sihanya (2021) Constitutional Democracy, Regulatory and Administrative Law in Kenya and
Africa Vol. 1:Theory, Structure, Method and Systems, , Sihanya Mentoring & Sihanya Advocates, Nairobi & Siaya
(CODRALKA 1) on the classical formal or (neo) liberal classification, what I call the Ghaian, Nwabuezean and Shivjian
typology, and Sihanyan reconceptualisation of the constitution, state, government…; Chapter 5 of this book on
Theorizing and Methodology of Comparative Constitutional and Sustainable Development in Kenya and Africa. See
Articles 5 (territory of Kenya), 2(5) and (6) on the applicability of general rules of international law and treaties or
conventions in Kenya….and Article 4(1) which states that Kenya is a Sovereign republic.
….2
It is primarily about the people. What was the composition or diversity of the population in 1895,
1920 (colony and protectorate), 1952-55 (Post-War second colonial conquest?) and in 1963
(independence)? ….10

…….[review; relocate]….The struggle for independence in the 1950s and 1960s also showed the
demarcation of Kenya along ethnic groupings. For instance, the Kikuyu, Embu and Meru Alliance
and the Luo Union largely advocated for their community’s interests, as compared to any
distinguishable national interest.

What was the population size and diversity in terms Africans, Whites, Indians and Arabs11 on the
following significant dates among others: 1895, 1908, 1915, 1920, 1948, 1962, 1963, 1969, 1979,
1989, 1999, 2019, (47 million?), 2020? 2022? The Preamble to the Constitution 2010
acknowledges diversity of Kenyans as a united sovereign nation, including pride for Kenyans’
religious and cultural diversity. This is reiterated in Article 1 which states that sovereign power
belongs to the people of Kenya.12

Third, it is about a constitutionally democratic and effective government (my reconceptualization)

as a sovereign under Art. 4(1). And fourth, capacity to transact in international relations as a
sovereign republic under Article 4(1), and in recognition of the application of the general rules of
international law, and any treaties and conventions ratified by Kenya, under Articles 2(5) and 2(6)
of the Constitution 2010….13

....The Constitution is core and is implied in (re)constituting Kenya historically in terms of law,
rules, principles, policies, norms and values.

Second, what is Kenyan territory; international borders or boundaries? Size? See the … Schedule
to the Constitution 2010…… Which states does Kenya border? Who are the people within Kenyan
territory or boundary? Kenyans beyond territory? Who are Kenyans, Kenyan citizens historically?
Who can pass on citizenship? The concept of citizenship and nationality in Afro-Kenyan nation
state building is deeply tied to an individual’s ethnicity. This is especially applicable during
applications birth notification, birth certificates for national identity cards (IDs), driving licence or
passports.

10
To develop a matrix on these dates, their constitutional significance, and the population. To contextualize by tribe,
races, gender, age, unemployment, occupation, other demographics….
11
Relocate: Pre-school children sang, at independence: “zamani tuliwekwa hadi namba foo (four)…. ….sasa aboutani
tuko namba wani…Kenya.
12
Cf……
13
This includes the exercise of external sovereignty that encompasses facilitating and protecting citizens abroad; when
they engage in international diplomacy…..cooperation, foreign policy……. See the Montevideo Convention on the
Rights and Duties of States, 1933; Vienna Convention on the Law of Treaties (VCLT) 1969, Vienna Convention on
Consular relations (VCCR) 1963, Vienna Convention on Diplomatic Relations (VCDR) 1963. Arts 2(5) and (6), 4(1) of
the Constitution of Kenya, 2010; and Chapter 5 of CODRALKA 1 on Theory and Methodology of Comparative
Constitutional and Administrative Law in Kenya and Africa: Law and Sustainable Development.
3
……Discuss territory and citizenship under Constitution 2010…. There are at least three (3) ways
of acquiring citizenship under the Constitution 2010. First, citizenship by birth under Article 14 of
the Constitution 2010. This applies where both parents are Kenyans, or where a child below 8
years is found within the territory of Kenya who nationality and parents are unknown.

Second, citizenship by registration. This can apply where one has been married to a Kenyan
citizen for more than seven (7) years. Widows and widowers of Kenyan citizens can also apply for
registration as citizens, under section 12(1) of the Kenya Citizenship and Immigration Act, 2011,
where within seven (7) years of their marriage to the Kenyan spouse, they would have been
entitled to such citizenship. Third, dual citizenship. This is substantively discussed under Chapter
3 of this book.

Articles 87 of the Independence Constitution, 1963 provided that citizenship could be acquired in
at least two (2) instances. First, any individual born within the territories of Kenya, or
Commonwealth colonies would be a Kenyan citizen as at December 12, 1963. Second, where an
individual was born outside the territory of Kenya, but the father was, and or would have been a
citizen of Kenya as at December 12, 1963.

Article 88 of the Independence Constitution, 1963 stipulated that a person could obtain citizenship
by at least three (3) instances. First, application for registration as a citizen of Kenya. Second,
through marriage to a Kenyan citizen. Third, citizens of the United Kingdom and Commonwealth
colonies could also obtain citizenship in Kenya through naturalization.14

Third, what is constitutionally democratic and effective Government expressed in Afro-Kenyan

statehood and nationhood?....

Fourth, what is capacity to transact in international relations in Afro-Kenyan statehood and

nationhood?.....

1.1.1.1 How did Kenya become the East Africa Protectorate and Kenya Colony and
Protectorate? [to review titles…. relocate?]
“Kenya” was initially the British East African Protectorate from June 15, 1895 then Kenya Colony
and Protectorate from 1920.15“Protectorate” persisted until independence in 1963 as it referred to
the 16 km or 10 mile coastal strip which was under the Sultan of Zanzibar… United Kingdom
(UK) constitutional law, English regulatory and administrative law, and English understanding of
the law
14
…..See Article 88 of the Independence Constitution, 1963 & section 1 of the Kenya Subsidiary Legislation,
1963…..variety of authorities…..
15
See the legal instruments including East African-Order-in-Council, 1897 which evolved into sections of the Judicature
Act, 1967, Cap 8 on sources of constitutional law in Kenya; Independence Constitution of Kenya, 1963... What
international law rules governed colony and protectorate status....? Nigeria was given its name by Lord Frederick
Lugard’s girlfriend (later wife), Dame Flora Shaw in 1898. See Chinua Achebe (2012) There was a Country: A Personal
History of Biafra, Penguin group, London, England; African Today, Nigeria at 100: A nation searching for its soul, Vol.
20, No 04/05.

4
of nations (or international law) were applied in constructing the colony and protectorate including
the East African Order-in-Council 1897 which would be amended over the years to the 2018
version of section 3 of the Judicature Act, 1967 (as amended). Section 3 of the Judicature Act,
1967 states:16

“3(1) The jurisdiction of the Supreme Court, the Court of Appeal, the High Court, the Environment
and Land Court, the Employment and Labour Relations Court and of all subordinate courts shall be
exercised in conformity with— (a) the Constitution; (b) subject thereto, all other written laws,
including the Acts of Parliament of the United Kingdom cited in Part I of the Schedule to this Act,
modified in accordance with Part II of that Schedule; (c) subject thereto and so far as those written
laws do not extend or apply, the substance of the common law, the doctrines of equity and the
statutes of general application in force in England on the 12th August, 1897, and the procedure
and practice observed in courts of justice in England at that date.”

The proviso to Section 3 states:

“Provided that the said common law, doctrines of equity and statutes of general application shall
apply so far only as the circumstances of Kenya and its inhabitants permit and subject to such
qualifications as those circumstances may render necessary; (2) The Supreme Court, the Court of
Appeal, the High Court, the Environment and Land Court, the Employment and Labour Relations
Court and all subordinate courts shall be guided by African customary law in civil cases in which
one or more of the parties is subject to it or affected by it, so far as it is applicable and is not
repugnant to justice and morality or inconsistent with any written law, and shall decide all such
cases according to substantial justice without undue regard to technicalities of procedure and
without undue delay.”17

What are the debates regarding who the people are in Kenyan and African constitutional
democracy?

1.1.1.2 People in Afro-Kenyanist Constitutional Democracy

Who are the “people”? What about persons (legalistic?); citizens, wananchi18 (wa kawaida19),
masses, peasants or (poor, middle, rich) or peasantry or hoi polloi; (lumpen) proletariat; Compare
upper class, middle class,20 lower or under class in liberal vis-à-vis neo-Marxist political economy;
Who are the “hustlers”? Where do students fall? What other related concepts are related to
“people”??.....

16
See the Judicature Act, No. 18 of 2018; Yash P. Ghai & J.P.W.B. McAuslan (1970, 2001) Public Law and Political
Change in Kenya, OUP, Nairobi; Robert Seidman (1969) “The Reception of English Law in Colonial Africa Revisited,”
2 E. Afr. L. Rev. 47…progressive aspects of the common law was not received in the colonies; and the best lawyers were
retained in England…. See also Yash Ghai (1986) “The Rule of Law, Legitimacy, and Governance,” 14 International
Journal of the Sociology of Law, 179; ….
17
Section 3 of the Judicature Act, 1967 (as amended). Cf. Art. 2 of the Constitution of Kenya, 2010; s. 3 of the 1969
Constitution of Kenya…Clause 3A of the (Bomas) Draft Constitution of Kenya 2004….
18
…..
19
….
20
What are the sub-categories among the middle class?5
A concept which is closely related to civil society is “people.” This may refer to the population in
the definition of the liberal state. Population forms part of the conceptualization or definition of a
state under the Montevideo Convention on the Rights and Duties of States 1933.21

Civil society, people and population have different meanings in every day politics, or on the other
hand, political science, history, sociology, or constitutional theory and process as well as practice.

Politicians and Government officials tend to use the term people in a pejorative, heuristic and
rhetorical sense. For instance, Government officials tend to use “people” to mean the masses in the
liberal political economy without the Marxist Leninist content and in contradistinction to the
middle class or the elite.22

Questions that persist include: Who are the people? What is class? Middle class versus the petit
bourgeois? Who are “we the people?”23 The rulers, aristocrats, clergy? It is instructive that
historians agree that even after decades of debate, scholarship is yet to accurately secure consensus
on who or what the people are.24

If that is the brief construction of Kenya, who precisely are the people in Afro-Kenyanist political
economy and constitutional sociology?

Further, the Constitution, law, policy and administration are primarily concerned with the people,
their human rights and Bill of Rights, e.g. in Chapter 4 of the Constitution of Kenya, 2010.

1.2 Conceptualising and Contextualizing Constitutionality, Legality, Validity, Legitimacy

and Supremacy …Constitution in Afro-Kenyan Nationhood and Statehood
What is the Constitution? Is the Constitution a law? Is the Constitution basic? Fundamental?
Supreme?
21
Cf. Population in the definition of State; people in US, Kenya, who are the “people” in the African Charter on Human
and Peoples’ Rights, 1981. Cf. Class 1.2 (state); HWO Okoth-Ogendo (1993) “Human and Peoples’ Rights: What Point
is Africa trying to make?” In R. Cohen, G. Hyden, and W. Nagen (eds), Human Rights and Governance in Africa,
Gainesville, FL: University Press of Florida, at 76.
22
There is still debate in Kenya, Nigeria and South Africa generally and in the West regarding how “people” are defined
and treated by Presidents, Governments and public bodies. Are supporters of the President or Government “people” for
purposes of Art 1? Art 10? Art 37? Or are their interests already catered for directly or indirectly by their consent to
rulers? These relate to access to political power, socio-economic resources, opportunity and the question of participation.
Issues in Kiambu, Kericho, Kisumu…etc. on Governor’s decision v. popular participation in 2013/2014; debates on the
threshold of public participation on the Constitution of Kenya (Amendment) Bill, 2020 in Siaya and Kisumu counties in
2021. See Kepher Otieno (2021) “Kisumu County Assembly passes BBI bill in record three hours,” Standard, Nairobi,
February 9, 2021, at https://www.standardmedia.co.ke/nyanza/article/2001402864/kisumu-becomes-second-county-to
pass-bbi-bill-after-siaya (accessed February 10, 2021). Some Bills and Acts have been questioned; Some governors have
been threatened with impeachment because of problems of participation.
23
See the preambles to the 2010 Kenyan and 1787 US Constitutions….
24
See review by Prof William R. Ochieng in Weekly Review of Prof Trevor-Roper’s book … and views which Prof
Ochieng and Prof BA Ogot expressed in their books…..6
First, the title of Article 2 of the Constitution of Kenya is “supremacy of the Constitution.” The
title captures the essence of Article 2, and the significance of the Constitution in the constitutional
and legal system. However, the title does not cover all the major rules, principles, norms or values
embodied in Arts. 2(1), (2), (3) and (4) (i) (a) and (b) discussed below. The title is only accurate
that it builds towards the objective of demonstrating the supremacy of the Constitution. Happily, it
captures the essence of the article. Remarkably, titles or headings are not primary but are
secondary aids of interpretation or construction.25

Significantly, Article 2(1) provides that “this Constitution” is the supreme law. Three (3) issues.
First, it is this and not any other Constitution, e.g. not the 1969 Constitution. Second, it is a law,
given that some constitutions are mainly economic or political charters…. Third, it is the supreme
law.

Section 3 of the 1969 Constitution was arguably clearer and more logical? on two issues. It stated:
“this is the Constitution of the Republic of Kenya and shall have the force of law.26

Moreover, the Constitution binds all persons, meaning all natural27 and juristic or legal entities and
all state organs. Most of these are legal persons anyway. This is for emphasis. It binds all state
organs at both levels of government. This other emphasis: state organs capture this.28

The second major point is that Article 2(2) states: “No person may claim or exercise State
authority except as authorized under this Constitution.”29

All (public) power or authority must emanate from a specifically guaranteed or enumerated
constitutional provision. This may be directly found in a constitutional provision or it may be
under the Constitution, that is, in a statute, rule, regulation or practice and tradition that is
specifically authorized by or indirectly derived from and not inconsistent with the Constitution.
Liberty versus Power….
There is a difference between the exercise of power and the enjoyment of liberty. On the one hand,
power or authority must have a constitutional authority, and hence the President, Speaker, Chief

25
Cf….. Chapter 30 of CODRALKA 2…..
26
I.e. it is not just a political or moral charter or code….
27
A person in law. A ‘person’ is an entity with rights and duties in legal theory or jurisprudence, constitutional,
administrative…., and company law, among others. Human beings are natural persons. Arms of Government, ministries,
departments, and agencies (MDAs) are sometimes legal or juristic persons. Other important persons are corporations,
inter-governmental bodies, and incorporated civil society organizations (CSOs)…. It depends also on the objective. This
may be through … insanity…..personality can be limited or lost by natural and juristic persons. 28 The drafters or
framers were acting with extreme caution – ex abundant cautela partly because in Kenya and in many African states,
some have cast doubt on whether the Constitution or the law binds some state agencies or officials. That is part of the
rumour that a President or Prime Minister (PM) is “above the law.” See Chapter 11 of CODRALKA 1 and Chapter 4 of
CODRALKA 2 on Presidency and Public Authority in Kenya’s Emerging Constitutional Order, and presidential
immunity).
29
The creation of Nairobi Metropolitan Service (NMS) was declared unlawful in Okiya Omtatah Okoiti v. Nairobi
Metropolitan Service & 3 Others; Mohamed Abdala Badi & 9 Others (Interested Parties) [2020] eKLR, Petition 52 of
2020.

7
Justice, or Governor or any other official must cite the source of authority in appointment,
disappointment, any conduct (action or omission) or intention.

There are three (3) problematic examples: First, President Uhuru Kenyatta appointed Dr Fred
Matiang’i as Chairperson and Deputy, National Development Implementation and Communication
Cabinet Committee on January 22, 2019.30 Second, President Kenyatta II appointed County and
Regional Coordinators without (sufficiently) addressing section 17 of the Sixth Schedule on
restructuring the “provincial” administration under the 1969 Constitution.31

Third, in 2013/2014, President Kenyatta II and the then Devolution Cabinet Secretary (CS) Anne
M. Waiguru separately appointed Mr Abduba Dida the 2013 token presidential candidate to the
same office but cited different laws. Moreover, they were criticized for assuming that Dida would
assume office immediately. Yet vetting by the National Assembly was required.

On the other hand, the people have liberty, unless it is constitutionally limited in the Bill of Rights,
especially under Arts 21, 24, and 25 on implementation, limitation of fundamental rights and
freedoms, and the rights and freedoms that may not be limited.

Validity or legality of the Constitution unchallengeable?

The third major point is that Article 2(3) states, “the validity or legality of this Constitution is not
subject to challenge by or before any court or other State organ.”

The point is that the Constitution 2010 should be accepted (or presumed) as valid and legal in at
least three (3) senses. First, that its substantive provisions or clauses are in totality or as a whole
valid and legal. Remarkably, there were attempts to question the validity of Kadhi’s Courts before
the Interim Independent Dispute Resolution Committee (IIDRC).32

Second, (it is to be presumed) that the procedure used to adopt it was valid and legal. And that
courts should not entertain any invalidation proceedings that question the procedure or process that
was used to adopt this Constitution as happened in Njoya v. A-G.33

Third, this means that courts should not entertain an action invalidating the Constitution as a
whole on substantive and or procedural grounds.

Remarkably, there may be issues of unconstitutionality, inconsistency or ambivalence between or

among specific constitutional provisions. Examples include: on ethnic and regional inclusion and
balance; on gender equity in appointive versus elective offices;34 the powers and functions of the

30
Cyrus Ombati (2019) “Uhuru makes CS Matiang'i super minister,” Standard, Nairobi, January 23, 2019, at
https://www.standardmedia.co.ke/kenya/article/2001310397/matiangi-now-most-powerful-minister (accessed February
10, 2021).
31
On the foregoing 2 issues, see Ben Sihanya (2020) “Constitutionality of President Kenyatta’s appointment of CS Dr
Fred Matiang’i as Chairperson, National Development Implementation and Communication Cabinet Committee,”
working paper at Sihanya Mentoring & Innovative Lawyering, at www.innovativelawyering.com(accessed 28/2/2019).
32
….
33
Timothy Njoya and Others v. Attorney General and CKRC (2004) eKLR.
34
The implementation of the two-thirds gender rule in Kenya as under Article 27(8) as read with Art. 81(b), Constitution
8
National Police Service Commission (NPSC) vis-a-vis Inspector General of Police ((IG)(P)).35

My argument is that whenever there is inconsistency between the Bill of Rights (liberties) and a
provision of power, the Bill of Rights clause generally trumps power.

An example is that section 2A of the 1969 (1982) Constitution provided that “there shall be only
one political party in Kenya, the Kenya African National Union (KANU).....” And yet the Bill of
rights chapter (sections 70-85) had provisions on the freedoms of conscience, opinion, expression,
assembly and association, among others. To the extent that section 2A was inconsistent with the
Bill of Rights, and in fact, it contravened numerous provisions of the Bill of Rights including the
foregoing, section 2A was to that extent unconstitutional. This is in spite of the refusal of courts to
entertain invalidation cases until political and popular pressure came to bear under the Second
Liberation. Section 2A was repealed in 1991 under the Constitution of Kenya (Amendment) Act
No. 12 of 1991.

Revolutionary legality or validity of the Constitution

This can be compared to the cases from South Africa, Nigeria, Uganda, Zimbabwe, Swaziland and
other states. First, the (un)constitutionality of apartheid in the context of black resistance and
struggle for independence or majority rule. Second, the sudden change of the constitution (or Hans
Kelsen’s grund norm). Third, overthrow of the President or Prime Minister. Fourth, the dismissal
of (senior) Government officials. Fifth, the political, constitutional and electoral see-saw between
the Prime Minister (PM) and the King, e.g. Swaziland. Some cases xamples include: Lakanmi;36 ex
parte Matovu;37 Opoloto;38 Grace Stuart Ibingira;39 Madzimbamuto v. Lardner Burke.40

……..Any case on constitutionality of apartheid? (Certification of) …. Interim Constitution of

South Africa?

Madzimbamuto v. Lardner Burke involved the contestation of the constitutionality of a

(preventive?) detention order made by the de facto Government of Prime Minister (PM) Ian Smith
in Rhodesia. Ian Smith in November 1965 claiming Rhodesia was independent from the British
Queen’s Government but led by a White minority in Rhodesia.

Remarkably, the Rhodesian Government sought British support in the context of black resistance
and struggle for independence or majority rule. The British Privy Council (PC) in this case applied

of Kenya, 2010 has been subject of contention, including through at least six (6) petitions to the courts, and stalled
Gender bills in Parliament. See Marilyn Muthoni Kamuru (2019) “Kenya’s Gender Bill: Battling inequality, saving the
constitution,” Al Jazeera, March 17, 2019, at https://www.aljazeera.com/opinions/2019/3/17/kenyas-gender-bill
battling-inequality-saving-the-constitution (accessed February 10, 2021). The Constitution of Kenya (Amendment) Bill,
2020 proposed to amend Arts. 97 and 98 to provide for a mixed-member proportional representation system to ensure
gender equity in representation.
35
See the contestation between the Johnstone Kavuludi-led National Police Service Commission (NPSC) and the then
Inspector-General of Police IG(P) David Kimaiyo on appointments, transfer of some police officers in 2013-2014. 36
Lakanmi & Others v. Attorney-General (West) & Others (1970) Vol. 6 NSCC.
37
Uganda v. Commissioner of Prisons ex parte Michael Matovu [1966] 1 EA 514.
38
Shabane Opoloto v. Attorney General- Uganda (1969) EA 631.
39
Grace Stuart Ibingira and Others v. Uganda (1966) EA 306; 445.
40
See also Chapter 13 of CODRALKA 2.
9
the Kelsenian efficacy (effectiveness) doctrine or principle. In this context, this principle meant
that the de facto Government could not be legally and validly recognized since the de jure British
Government was still trying to regain control of Rhodesia. This was a supra-constitutional concept
as it involved consideration of factors outside the then (Rhodesian) constitutional and legal order.

What were the findings of the Southern Rhodesian and related courts?

In Lakanmi, the Nigerian court held that for a revolution to be held to have occurred, then the
military must have initiated a hostile takeover of power. In the present case, there was no
revolution since it was a voluntary handing over of power to the military. The court was called
upon to elucidate on the principle of necessity. This principle allows for constitutional reforms and
or suspension of a Constitution, where the prevailing circumstances were not conceptualized or
foreseen by the present constitutional framework.

The Ugandan case of ex parte Matovu largely arose from the collapse of the UPC-KY coalition
Government…41 The court opined that a revolution took place by virtue of the then President
Milton Obote’s proclamation whose effect was suspending the Constitution of Uganda at that
time. The former Prime Minister (PM) Obote had proclaimed himself President and overthrown
President Kabaka of the Kabaka Yekka (KY) party..
Hans Kelsen had argued what constitutes a revolutionary change of the Constitution involves
changing the legal order and in a process, manner or procedure, not conceptualized by, or contrary
to the present constitutional order. Therefore, Chief Justice Sir Udo Udoma upheld Hans Kelsen’s
theory of revolutionary change of constitution in Matovu. The argumentation was contrived and
confused…..to achieve a political outcome favourable to the Obote power play. Uganda thus
embarked on the path of unconstitutional change of Constitution, Government legal order and
state…

The Swaziland cases….King v. Prime Minister….42

……. Inconsistency… with the Constitution by other Laws…

Fifth, Art 2(4) states:

“Any law, including customary law that is inconsistent with this Constitution is void to the extent
of the inconsistency, and any act or omission in contravention of this Constitution is invalid.”

And section 3(2) of the Judicature Act (repugnancy clause) states that:

“African customary law’ shall govern in ‘civil cases in which one or more of the parties is subject to it or
affected by it, so far as it is applicable and is not repugnant to justice and morality or inconsistent with any
written law…”

41
….
42
…. [we analayzed them during the BBI Appeal to the Court of Appeal]….

10
African customary law v. Afro-Kenyan common law in the Constitutional and Legal System….
Five issues arise: First, why single out customary law? The debate also arises with regard to the
Constitution 2010 itself recognizing the place of culture and ethnicity under Articles 63
(community land)…. and traditional dispute resolution mechanisms (TDR) or traditional justice
systems in the Kenyan constitutional and legal system. Relatedly, the repugnancy clause was
derived from Section 52 of the 1897 Order-in-Council which allowed the application of customary
to African natives, provided that such law was not repugnant to justice (and morality).43

Second, what are the other sources of law (to which the Constitution is supreme) under Art 2(1)
and 2(4) which entrench the repugnancy clause? The Constitution does not have a list of all the
sources of law applicable in Kenya. These are to be found scattered in Art 2, other provisions of
the Constitution and statutes such as section 3 of the Judicature Act, 1967, Cap 8.

There was an intention at the Bomas National Constitutional Conference (NCC) to list the sources
of law (not the list of statutes or rules and regulations) in an article. However, it was abandoned.
Such a clause is necessary.
The typology of the sources of law in Kenya are (or include) the following nine (9). First, the
Constitution. Second, statutes of the National Assembly, Senate, and the 47 County Assemblies.
Third, statutes of the UK Parliament of general application even in 2021 and beyond?44 Fourth,
certain applied statutes of India, including the Indian Transfer of Property Act (ITPA) which was
integrated into the 2012 land laws (?). Fifth, rules, regulations and by-laws which are also called
delegated, subordinate, legislation. Sixth, Islamic law. Seventh, Hindu law. Eighth, customary
international law. Ninth, treaty law.

Third, apart from the Constitution which is supreme and at the top of the hierarchy of Kenya’s
constitutional, juridical or legal and judicial system, do the other sources of law relate
hierarchically under the Constitution and or under section 3 of the Judicature Act? Yes and no.

Remarkably and problematically, customary law is custom, tradition, or practice that has received
judicial recognition under the Constitution, the Judicature Act, the Evidence Act, Civil Procedure
Act and other laws. Does that partly explain the peripheral treatment of Afro-Kenyan or “African
jurisprudence” and the insistence on the customary law of specific African tribes without any
serious development of the Afro-Kenyan common law?

The sixth major point is that there is need to develop the following three sets of laws. First,
Kenyan common law of marriage, custody, succession, and burial, contract, torts, real property,
the Constitution, intellectual property, and education, among others. Already, some judges,
magistrates

43
A long line of cases including Wambui v. Ougo and Siranga (1986) KLR have addressed the constitutionality and
legality of African custom(ary law) in Kenya, even though largely unsatisfactorily.
44
E.g. the British Nationality Acts 1948 and 1958, Admiralty Offences (Colonial) Act 1849, and Evidence by
Commission Act, 1859….

11
and Kadhi’s are developing the law in family, succession and burial areas and in contract,
conveyancing and procurement, among others.

These will facilitate pan-Kenyan and African relations. Second, there is need to develop Kenyan
customary law in these and related fields. This will facilitate inter-tribal relations. Third, there is
need to continue developing the relevant customary laws of the respective tribes or ethnic groups.

Unconstitutionality, Counter-Constitutionality and their effect: invalid, null, void The seventh
point is that Art 2(4) also invalidates “any act or omission in contravention of this Constitution...”
What is the difference between a void and an invalid law, act or omission? What is “voidable,”
“null and void”?45 Lord Denning in Macfoy v. United Africa Co. Ltd (1961) stated that:

“If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need
for an order of the court to set it aside. It is automatically null and void without more ado, though
 it is sometimes convenient to have the court declare it to be so. And every proceeding which is
founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to
stay there. It will collapse…”

But it is not that simple in policy or in constitutional and administrative law. Lord Denning stated:
“But if an act is only voidable, then it is not automatically void. It is only an irregularity which
may be waived. It is not to be avoided unless something is done to avoid it. There must be an order
of the court setting it aside; and the court has a discretion whether to set it aside or not. It will do
so if justice demands it but not otherwise. Meanwhile it remains good and a support for all that has
been done under it.”46

Therefore, any action that is null and void would be deemed as non-existent from its initiation,
while actions or omissions that are voidable are only void when they are declared as such by a
competent court of law…….

Inconsistency and or contravention of the Constitution

What is the difference between a law, act or omission that is “inconsistent with and in
contravention of” the Constitution? Inconsistency is a lower level of non-compliance or fidelity
than contravention, which suggests negation. Thus, laws and conduct must strictly comply with
the Constitution.

Art 2(4) should thus be the basis of (almost) all actions regarding constitutional non-compliance.
Arts 21, 22, 23, 24, 25 and 47 then reinforce the constitutional supremacy. In spite of such clarity,
some debate persists on supremacy and sovereignty with regard to the people, Constitution and
Parliament.47

Court of Appeal Justice Otieno Odek gave an extrajudicial opinion on the effect of

45
These issues are discussed in detail in Administrative law, Judicial Review, and Chapters 2, 5 and 13 CODRALKA 2
and Chapters 2 and 31 of CODRALKA 1.
46
Macfoy v. United Africa Co. Ltd [1961] 3 All ER, …?1169.
47
See Chapters 6, 7, 8 in
CODRALKA I. 12
unconstitutionality in a Law Society of Kenya (LSK) conference…..48

Sovereignty….
Sovereignty underpins and links such fundamental questions as the production, reproduction, use
and sharing or (re)distribution of resources and public power in Kenya, Nigeria, South Africa and
elsewhere. The conceptualization, problematization and contextualization of sovereignty is key to
the operationalization of the Constitution and the proper demarcation of the role of the state and
the ruler, especially the President in Kenya, Nigeria or South Africa.

Three (3) broad tendencies have emerged. First, the progressive state or President. This is absent in
the foregoing states and most African states after the retirement of President Nelson Mandela and
Julius Nyerere. Second, the retrogressive or rent-seeking state and president are dominant. Post
independent Kenya’s presidential regimes upto 2021 constitute an unmitigated case study. Third,
there are a few states and presidencies in Africa, like Ghana or Botswana that gravitate between
the two: What are the trends and why? Yet most neo or post-colonial states claim that they are
governed by liberal constitutional values, principles, processes and procedures.

They have also been called patrimonial, predatory, rentier, parasitic, or prebendal49 partly because
of the commitment of the rulers and their tribal or business affiliates to focus on primitive
accumulation. This trend has been captured most dramatically, and in a display of the arrogance of
power and impunity by Kenyatta-Ruto administration on numerous occasions before the
“handshake.” It is remarkable that all the four (4) key political players in this context apologized to
one another after the handshake, namely, President Uhuru Kenyatta and Deputy President William
Ruto; Raila Odinga and Kalonzo Musyoka….

Constitutional democracy under Kenyatta I, Moi, Kibaki and Kenyatta II The crisis in
Afro-Kenyan constitutional sociology, political economy and cultural politics has persisted since
independence because of challenges associated with constitutional democracy and sustainable
development. The main challenges are associated with tribalism, corruption and economic
decline.

Constitutional democracy and sustainable development under Kenyatta I The Kenyatta I

Government post-independence was riddled with tribalism and economic injustice. These
included especially accumulation of land under the Mau Mau resettlement scheme, by Kenyatta 1
and his allies. The Kenyatta family’s matriarch Mama Ngina Kenyatta was reported to

48
…..
49
Richard Joseph (1987) Democracy and Prebendal Politics in Nigeria, Spectrum Books, Ibadan, Nigeria; Larry
Diamond (2008) The Spirit of Democracy: The struggle to build free societies throughout the world, Henry Holt and
Company Ltd, New York; cf. KNCHR (2008) “On the brink of the precipice: A Human Rights account of Kenya’s
post- 2007 election violence, at
http://www.knchr.org/portals/0/reports/knchr_report_on_the_brink_of_the_precipe.pdf(accessed
7/9/2016).135;Richard Joseph (2000) For Humanity: Reflections of a War Crimes Investigator, Yale University Press,
New Haven, Connecticut.

13
own over 115, 000 hectares of land, especially in Rift Valley and Kiambu….50

Central, Rift Valley, Coast…. have reported cases of historical land injustices as outlined in the
TJRC Report. The Kenyatta family has also been mentioned in illegal ivory trade, and the Panama
papers. These are substantively addressed in Chapter 10 of this book below….

Constitutional democracy and sustainable development under President Daniel Moi President
Daniel Moi ascended to the Presidency after the death of Jomo Kenyatta in August 1978. Moi
promised to fuata Nyayo (follow in the footsteps) of President Kenyatta I. This was deemed by
progressive Kenyan to mean a continuation of state-sponsored corruption. It was about some
transfer and retention of hegemony and negative cultural politics by appeasing the Kikuyu
community, who still held critical Government positions.

Moi, largely sidelined the Kikuyu and other tribes, and entrenched Kalenjin hegemony in
Government. Under President Daniel Moi’s 24-year rule, Kenya passed more than 10 major
constitutional amendments to the Independence Constitution, 1963 (1969), including the
enactment of section 2A which proscribed multipartyism in Kenya. This entrenched the one-party
rule under KANU “chama cha mama na baba.”51 The Moi regime necessitated serious agitation
for constitutional reform, economic revolution and political pluralism that characterized the last
years of the Moi administration and that the Kibaki and subsequent administrations or
Governments…….

Constitutional democracy and sustainable development under President Mwai Kibaki President
Mwai Kibaki came to power in 2002 under the National Rainbow Coalition (NARC) which was an
alliance of the Liberal Democratic Party (LDP) under Raila Odinga and the Democratic Party
(DP), among others. The 2002 General election was considered the only free and fair election
Kenya had had since independence.

The Kibaki 2002-2007 Government promised constitutional reform to undo the misdeeds of the
Moi Government. However, the 2004 Bomas Draft was abandoned due to perceived Government
interference in the constitutional reform process and sabotage by politicians who had vested
interests….. The state machinery and leaders under the Kibaki regime were beneficiaries of the
Moi regime, hence no progressive constitutional, policy, administrative reform would guarantee
inclusivity and address corruption. Also, the fallout of NARC under Kibaki and the Raila team led
to ethnic polarization which in addition to other historical injustices, led to the 2007-08
post-election violence (PEV)…..

Constitutional democracy and sustainable development under Kenyatta-Ruto Administration

The Kenyatta-Ruto Government came to power in 2013 with the promise of tribal unity, economic
revitalization, and transition from “analogue” to “digital.” The Kenyatta-Ruto duo also faced trials
at the International Criminal Court (ICC) for crimes against humanity, related to the 2007-08 post

50
…..
51
…..

14
election violence (PEV)….

Tribalism and political patronage were extended to the first Cabinet and bureaucratic appointments
under the Kenyatta regime, with Deputy President William Ruto, appointing a majority of Kalenjin
to cabinet and the bureaucracy in 2013.52 And Kenyatta also appointed mainly Kikuyu to major
offices in the Government. The Government became largely a diarchy…
More than 20 pieces of legislation, Cabinet directives, Gazette notices and proclamations under the
Kenyatta-Ruto administration’s decisions and or appointments have also been held
unconstitutional by the Judiciary.

However, some of the Judiciary’s decisions have been critiqued.

…..For instance, the Court of Appeal engaged in a problematic argumentation and developed a
problematic opinion in the BBI Appeal on the issue of the constitutionality of the composition of
the Independent Electoral and Boundaries Commission (IEBC):

Two quarrels, one statements from the presidential bully pulpit capture the pos-colonial
lawlessness and power games…. First, was at the funeral of William Ole Ntimama, the former
Cabinet Minister and Maasai leader who for over thirty (30) years championed Maasai land rights,
including what he regarded as against Kikuyu encroachment of Maasailand. Raila Odinga
challenged the Kenyatta II administration to release the report of the Truth, Justice and
Reconciliation Commission (TJRC) which addresses land dispossession of the Maasai and other
Kenyans.53

President Kenyatta II retorted:

“nyinyi mnang’ang’ania kiti na sisi tumekalia na hatuna haraka ya kutoka…” (you people
are struggling to have a seat (public power; the presidency…) but for us we are seated and
we are not in a hurry to leave).54

President Kenyatta II added:

“kumeza mate sio kula nyama … endeleeni kumeza mate, lakini nyama tutakula (swallowing saliva
is not the same as eating meat… keep on salivating but we will continue eating meat).”55

52
Luke Awich (2021) “Kalonzo to Ruto: You gave all top jobs to Kalenjins,” Star, Nairobi, January 14, 2021, at
https://www.the-star.co.ke/news/2021-01-14-kalonzo-to-ruto-you-gave-all-top-jobs-to-kalenjins/ (Accessed October 18,
2021).
53
Moses Nyamori (2016) “Raila: Why Uhuru has refused to implement TJRC report years later,” Standard Digital,
Nairobi, September 15, 2016, at http://www.sde.co.ke/article/2000216139/raila-why-uhuru-has-refused-to-implement
tjrc-report-years-later (accessed 29/9/2016). See also Nzau Musau (2016) “Give Coast residents back their land, Raila
tells Jubilee,” Standard, Nairobi, September 24, 2016.
54
Macharia Gaitho (2016) “It’s in extreme bad taste to boast of ‘eating’ to starving Kenyans,” Daily Nation, Nairobi,
September 20, 2016, at http://www.nation.co.ke/oped/Opinion/440808-3387662-10bis14/(accessed 25/9/2016). 55
Macharia Gaitho (2016) “It’s in extreme bad taste to boast of ‘eating’ to starving Kenyans,” Daily Nation, Nairobi,
September 20, 2016, at http://www.nation.co.ke/oped/Opinion/440808-3387662-10bis14/(accessed 25/9/2016). My
interpretation.

15
Remarkably, in the pre-handshake period, both Kenyatta I and Kenyatta II administrations
promoted Kikuyu colonialism, dictatorship, ethnic politics, rent seeking, and primitive
accumulation. What Kenyatta told Raila Odinga and non-Kikuyus is reminiscent of what Kenyatta
I told Bildad Kaggia and non-Kikuyus in Kaggia’s Kandara Constituency in 1966:

“Kaggia, we were together with Paul Ngei in jail; if you go to Ngei’s farm, he has planted a lot of
coffee and other crops. What have you done for yourself? If you go to (Fred) Kubai’s, he has a big
house and a nice shamba. Kaggia, what have you done for yourself? We were together with
Kung’u Karumba in jail, now he is running his own buses. What have you done for yourself?”56

Kenyatta I demonstrated his arrogance of power and disdain for constitutional rights, freedom, and
liberties guaranteed to Jaramogi Odinga and the non-Kikuyu while on a tour to “open” a new
hospital in Kisumu on October 25, 1969. The tour was choreographed to provoke Odinga, shoot
children, women and men dead or injure them; then ban the opposition Kenya People’s Union
(KPU) and detain its leaders.57 The Kenyatta would be elected President unopposed. Kenyatta said,
inter alia:

“...for my part I do say this. If these people are dirty, if they bring about nonsense, we shall show
them that Kenya has got its government. They dare not play with us, and you Bwana Odinga as an
individual, you know that I do not play around...”58

The third occasion was Kenyatta II’s characterization of all Kenyans as whiners and thieves
(including himself? Or he as the leader?). He said:

“Wakenya ni kulia na kuiba hiyo ndio tukona ujuzi (Kenyans are expert thieves and nags)”59

Moi and Kibaki [similar incidents?]….e.g. Kibaki in 2007-08 civilian coup or unconstitutional
swearing in….

56
This has been interpreted to mean that Kenyatta’s understanding of independence as an opportunity for primitive
accumulation of wealth. See ES Atieno Odhiambo (1987) “Democracy and the Ideology of Order in Kenya,” The
political economy of Kenya, at 177-201; Ngugi wa Thiong’o (1981) Detained: A writer’s prison diary, 240, East
African Publishers, Nairobi, Kenya; Ali Mazrui (1969) Violence and Though: essays on social tensions in Africa,
103-105, Longmans, London; David Ndii (2016) “Of the Limuru hunt, land and the Luo bogeyman,” Daily Nation,
Nairobi, September 23, 2016, at
http://www.nation.co.ke/oped/Opinion/of-limuru-hunt-land-and-luo-bogeyman/440808-
3392860-iqea88/index.html(accessed 28/9/2016).
57
See ES Atieno Odhiambo (2004) “Ethnic cleansing and civil society in Kenya 1969-1992,” 22:1. Journal of
Contemporary African Studies, 29-42, at https://doi.org/10.1080/0258900042000179599 (accessed November 5, 2020)
58
See ES Atieno Odhiambo, ibid, at 25. Astonishingly, Kamau Ngotho has keenly sough to revise Kenya’s political
history, and even justify the Kisumu massacre reducing it to an incident, spat…., and choosing the sad occasion of the
50th Anniversary which should have been marked by an official apology and ... as demanded by the TJRC report. See
Kamau Ngotho (2019) “When Kisumu went up in flames,” Sunday Nation, Nairobi, October 27, 2019, at
https://nation.africa/kenya/news/politics/when-kisumu-went-up-in-flames-217256?view=htmlamp (accessed November
5, 2020). For a more incisive analysis and rebuttals, see Akoko Akech (2019) “Kenyatta regime covered up Kisumu
massacre,” Daily Nation, Nairobi, November 2, 2019, at https://nation.africa/kenya/blogs-opinion/opinion/kenyatta
regime-covered-up-kisumu-massacre-219290?view=htmlamp(accessed October 5, 2020).
59
Nancy Agutu (2016) “Kenyans are experts at stealing, hurling insults, Uhuru says in Israel,” Star, Nairobi, February
25, 2016, at http://www.the-star.co.ke/news/2016/02/25/kenyans-are-experts-at-stealing-hurling-insults-uhuru-says-in
israel_c1301621(accessed
28/9/2016). 16
And these are despite the fact that Kenya had the progressive Independence Constitution 1963 and
Constitution of Kenya 2010.

Moreover, most of the African states underwent constitutional reconstruction in the late 1980s and
1990s partly because of internal pressure, the collapse of communism or authoritarianism and the
advent of neo-liberalism, neo-con(servativeism), or “globalization.”

There was a long and rhetorical debate that Kenya belonged to the group of classmatic societies
while Tanzania, for instance, was classless.60 Jomo Kenyatta’s partial response was that Kenya
followed African socialism or communitarian mutual social responsibility. 61

……In the 2000s, Kenya, Nigeria and South Africa have largely pursued the policy of
constitutional reversal even where the constitutional texts are largely progressive.

The Nigerian presidential elections of 2015 were adjudged relatively free, fair and verifiable. And
President Muhammadu Buhari, a retired general, took some measures to address tribalism,
incompetence, corruption, and poor governance. Yet critics argued that the regime focused more
on (alleged) corruption by the former regime or the opposition; not by those in Government at that
time.62
Balancing constitutional liberties, rights, and power in Kenya and Africa
The Constitution thus largely adopts a three-pronged approach in defining the relationship
between the individual or groups, on the one hand, and the State (or National and County
Government), corporate and unincorporated associations, and other individuals or groups, on the
other hand.

First, the Constitution broadly guarantees the right, liberty or freedom. Second, the Constitution
states that the right may be limited by the interest of third parties. Third, the Constitution makes a

60
Contra Issa G. Shivji (1976) Class struggles in Tanzania, Tanzania Publishing House.
61
See the discussion on Sessional paper No 10 of 1965 on African socialism and its application to planning in Kenya..
Cf. Yash P. Ghai (1993) “Constitutions and governance: A prolegomenon,” in Sammy Adelman and Abdul Paliwala
(eds) Law and Crisis in the Third World, Hans Zell Publishers, pp. 51-74; Issa Shivji (1976) Class Struggle in Tanzania
Heinemann, London; Mahmoud Mamdani (1996) “Introduction: Thinking through Africa’s impasse,” in Mahamoud
Citizen and Subject: Contemporary Africa and the Legacy of Late Colonialism, Princeton University Press. (pp. 3 – 34);
Colin Leys (1975) Underdevelopment in Kenya: The Political Economy of Neocolonialism, 1964-1971, University of
California Press, Berkeley (pp. 1-27).
62
See Ben Ezeamalu (2016) “100 Days in Office: How Buhari’s anti-corruption war has gone so far,” Premium Times,
September 5, 2015, at http://www.premiumtimesng.com/features-and-interviews/189547-100-days-in-office-how
buharis-anti-corruption-war-has-gone-so-far.html(accessed 23/5/2015). Buhari was a military president from 1983 –
1985. Wole Soyinka called Buhari a “born again democrat” in the run up to the 2015 General Elections. See The world
weekly (2015) “Born-again democrat’ Buhari wins Nigeria’s election,” at
http://www.theworldweekly.com/reader/view/storyline/2015-04-02/born-again-democrat-buhari-wins-nigerias
election/3502 (accessed 8/9/2016); Ngozi Okonjo-Iweala (2012) Reforming the Unreformable: Lessons from Nigeria,
The MIT Press, op. cit. Critically, the 2018 Nigerian Presidential elections are regarded as not free nor fair, having been
preceded by the unconstitutional replacement of the Chief Justice. The electoral injustice is a contest of the recession
of constitutional democracy and electoral practice in Africa generally, including Kenya, Uganda, Zimbabwe, DRC,
Senegal,.....

17
broad statement that the right may be limited by the public interest and especially through
legislation.

The most comprehensive formula on balancing rights and obligations is probably Kenya’s Article
24(1) of the 2010 Constitution:

“A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then
only to the extent that the limitation is reasonable and justifiable in an open and democratic
society based on human dignity, equality and freedom, taking into account all relevant factors,
including – (a) the nature of the right or fundamental freedom; (b) the importance of the purpose
of the limitation; (c) the nature and extent of the limitation; (d) the need to ensure that the
enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights
and fundamental freedoms of others; and (e) the relation between the limitation and its purpose
and whether there are less restrictive means to achieve the purpose.”63

Kenyan and African Courts have developed a methodology of balancing constitutional rights and
obligations based on contemporary experience as well as ancient and classical constitutional
scholarship.

1.2.1 Ancient and classical typology or classification of Constitutions

In this section, we shall conceptualise , problematise and contextualise at least three (3) issues.
First, how has constitutional typology developed and influenced governance from the ancient and
the classical to the contemporary context in Kenya, Nigeria, South Africa, Uganda and Tanzania?
Second, how have the following three (3) and other related Constitutions influenced the debate on
typology?

Third, we focus on the constitutions of three (3) states. First, the transformative and revolutionary
Constitution of Kenya 2010 and the reform debates, especially under the Building Bridges
Initiative (BBI).64 Second, the South African Constitution (1994 and 1996) as amended. And
third, the Nigerian Constitution, 1999 as amended.

1.2.2 Ancient typology of Constitutions

The earliest form of classification of constitutions has been attributed to Plato and Aristotle.

63
Article 24(1) of the Constitution of Kenya.
64
This is the subject of completed and ongoing research at Sihanya Mentoring and Prof Ben Sihanya Advocates. These
includes at least four studies: Ben Sihanya (forthcoming 2021) Constitutional Democracy, Regulatory and
Administrative Law in Kenya and Africa (CODRALKA) Vol. 1: Elections, Governance, Human Rights, the Rule of Law,
and Due Process in Kenya and Africa; Ben Sihanya Essays, 1989-2019, SM &IL; Ben Sihanya (forthcoming 2021)
Constitutional Democracy, Regulatory and Administrative Law in Kenya and Africa (CODRALKA) Vol. 2: Presidency,
Bureaucracy and Administrative Justice in Kenya, Sihanya; Revised Teaching Notes on Constitutional Law and
Comparative Constitutional Law by Ben Sihanya 2004-2021, Sihanya Mentoring & Prof Ben Sihanya Advocates;
Sihanya (forthcoming 2021) Constitutional Democracy, Regulatory and Administrative Law in Kenya and Africa
(CODRALKA) Vol. 3: Opposition, NGOs, Academics, Clerics, and the Media in Governance, SM &IL; Ben Sihanya
(forthcoming 2021) Constitutional Democracy, Regulatory and Administrative Law in Kenya and Africa Vol 4:
Constitutional Democracy Cases and Material, Sihanya Mentoring & Prof Ben Sihanya Advocates.
18
According to Aristotle, constitutions are the essential structures of an organization. In this essay,
the focus is the Constitution of territories recognised under law, including (nation) state, nation, or
country.65

We do not focus on the equally important sub state units like “state” counties or provinces, or
supra state agencies, like the United Nations (UN) African Union (AU) East Africa Community
(EAC), Common Market for East and Southern Africa (COMESA); Southern African
Development Community (SADC), or Economic Community of West African States (ECOWAS).
They define what the parts of an organization are, what these parts do, and how the parts are
related to each other.66

Aristotle attempted to classify constitutions along two dimensions. The first one had to do with the
number and the types of persons in the ruling group.67 The second dimension had to do with
whether the ruling group followed aims that are “proper,” that is, intended for the good of all, or
“perverted,” that is, only for the rulers’ benefit. Aristotle argued that the best constitution is one
where anyone may prosper and live the good life.68

Increasingly, the Kenyan, Nigerian and South African experiences indicate a lot of concern
regarding inclusivity or integration in terms of trade, class, age and gender, including access,
sharing and governance of resources. There are also concerns regarding the production,
reproduction and distribution of power, including electoral justice, fair administrative action and
good governance.

Thus, South Africa has had relatively free, fair and verifiable elections since the Interim
Constitution 1994. Nigeria had the first generally free, fair and verifiable elections in 2015 since
the 1999 Constitution. And Kenya only had relatively free, fair and verifiable elections in 1963
and 2002 when Jomo Kenyatta and Mwai Kibaki, and the Kikuyu generally, were direct and
indirect beneficiaries.69

Significantly, Nigeria, South Africa and Kenya have had serious problems with the distribution of

65
These are nchi or taifa in Kiswahili.
66
Ibid.
67
This, he says, applies whether they were wealthy or poor.
68
JL Ackrill (1987) A new Aristotle Reader, Ibid. See also
www.yorku.ca/horowitz/courses/lectures/15_aristotle_best_constitution.html(accessed June 16,2014). 69 Some of the
benefits since independence in 1963 have been disproportionate access to jobs in Cabinet, in finance, security, (legal)
education; land (including land formerly controlled by white settlers and bought by the Government through all
Kenyan tax payers; affordable loans (for land purchase and for business (e.g. through state and tribally controlled
KCB, NBK); infrastructure (roads, hospitals). Remarkably, even though Moi ruled for 24 years, the (political)
economy and legal sociology were not fundamentally transformed from Kikuyu control e.g. landlord and tenant
profiles or identities and relations in Nairobi. Of course the discourse on who has looted more has been in vogue in
2019 e.g. by Ngunjiru Wambugu, MP, DCI Kinoti, Oscar Sudi, MP Kimani Ngunjiri, ...in social media, electronic and
print media..See Constitution of Kenya 2010, Arts 67(1) (e) etc... acknowledging historical and continuing injustices;
Truth, Justice and Reconciliation Commission (TJRC) Report, Commission of Inquiry into Post-Election Violence
(CIPEV) Report; Ndungu Land Report on Illegally and Irregularly Acquired Land; Chapter 15 and 16 of
CODRALKA 1. In 2008 and 2018, even Kibaki and Kenyatta II acknowledged.
19
power and resources.70

Aristotle also offered some hints and suggestions about a type of a mixed constitution which should
be the best.71 He opined that many people, taken collectively, have more wisdom than the few, even
though each member of the many will not be as an individual wise enough. There is danger,
therefore, in giving individual members of the lower, poorer classes offices of state.

Does this validate the marginalization of the poor in governance? For instance, in colonial Kenya,
voting rights and power in elections or referenda were partly based on and qualified or graduated
depending on classmatic considerations, property ownership, residence, employment (in the largely
inaccessible Government bureaucracy), and education.72

But there are risks as well in denying the lower orders as a whole any share in political power.
Therefore, to Aristotle, one should consider giving the many a share in deliberation, but not office
holding. By this, it can be properly inferred that Aristotle’s ideal constitution is that which is
mixed, that is, it should entail all the elements of an orderly society. But why not office holding?

Aristotle made two more observations that indicate the direction he wanted to take in building a
set of practical ingredients for the best constitution. He observed that there is no natural sense in
which “just” or “expedient” can be applied to the rule of a tyrant.

He advocated for two (2) components of a polity. First, an oligarchic component of polity where
there is the rule of a free people over themselves and the citizens are financially well-off. And
second, a democratic component of a polity where office-holders would be selected according to
merit and not wealth.73

According to Aristotle, most writers on constitutions fall short on the question of practicality,
whereas what is really needed is a system that could be legitimized and become stable on the basis
of the circumstances that already exist. This is the essential subject of political science – for him.74

Scholars, judges, lawyers, law makers and administrators have developed important typologies of
constitutions, states and governments. It is clear that the typologies or classifications are neither
comprehensive nor mutually exclusive.

1.2.3 Classical typology of constitutions in Kenya and Africa

What is a constitution in classical and contemporary theory and praxis? Prof Kenneth C. Wheare
70
Ibid.
71
Ibid.
72
See Yash Pal Ghai and J.P.W.B. McAuslan (1970, 2001) Public Law and Political Change in Kenya, OUP, Nairobi;
BA Ogot & William R. Ochieng (1995) Decolonization and Independence in Kenya, 1940-93, James Currey, London,
EAEP, Nairobi, Ohio UP, Athens. Ogot documents the basis and impact of granting no vote, one, two or three votes to
various categories of Africans beginning with the 1957 elections under the Oliver Lyttleton Constitution of 1954.
73
Cf. development of House of Lords and Commons in England; Senate and House of Lords Representatives in the US
and Nigeria; and the House of provinces in South Africa.
74
Yash Ghai (1993) “Constitutions and Governance in Africa: A prolegomenon,” in Sammy Adelman and Abdul
Paliwala (eds) Law and Crisis in the Third World, Hans Zell, London, at 53.
20
explains that most scholars and researchers of constitutional law use the term “constitution” in two
different meanings.75 First, a narrow view used when describing a selection of rules that control the
government and are embodied in a document. Second, a broader view is used when describing the
whole system of government in a country and the rules that bind that government and controls its
powers.

Thus, in this essay, a two-pronged model summarizes the definition of a constitution, by capturing
fundamentals. First, a constitution is a set of norms including law, rules, policies, principles and
values that govern a state, nation, nation states or similar polity in terms of liberties, power, and
processes, institutions or organizations. It does not extend to any other community, clan, club,
chama… as such76

We will focus on the Constitution of the State, even though we will also interrogate supra state or
national entities like countries (Kenya), states (Nigeria), or provinces (South Africa); supra-states
or national units like the East African Community (EAC), Common Market for Eastern and
Southern Africa (COMESA), Economic Community of West African States (ECOWAS),
Intergovernmental Authority on Development (IGAD), African Regional Intellectual Property
Organization (ARIPO), African Union (AU) and United Nations (UN). 77

Second, a constitution is the written document or instrument that captures the norms, including
law and rules. It may be one document or several.

According to Prof HWO Okoth Ogendo, there is no single authoritative definition of what a
constitution is; nor is there “a minimum set of principles that defines the content of a model
constitution.”78 He observes that throughout history, different societies at particular stages of
development have pronounced varying factual, philosophical, or theoretical conditions as
equivalent to a constitution.79 He defined a constitution using a six-pronged typology, which I have
reconceptualized, integrated through interpolation, adapted and elaborated below:

First, the constitution as a single constitutive act [constituting an independent Kenya in 1963, a
Republic in1964, reconstituting Kenya in 2010 and further debates on reconstitution or
reconstruction post-2010, especially under the Building Bridges Initiative (BBI)].

Second, the constitution as a fundamental norm, value, or moral principle [1969 and previous

75
K.C. Wheare (1951) Modern Constitutions, London, at 91, cited in Constitution Amendment: Nature and Scope of the
Amending Process, at http://164.100.47.134/intranet/CAI/CA_Nature.pdf (accessed28/5/2014). 76 Norm here means
rules but may also mean value judgment.
77
See Chapters 1, CODRALKA 2 and Chapters 2 and 3, CODRALKA 1.
78
HWO Okoth-Ogendo (1999) “The quest for constitutional government,” in Goran Hyden, Dele Olowu & HWO Okoth
Ogendo (eds) African Perspectives on Governance, Africa World Press, Trenton, 33-60. Prof Okoth-Ogendo was a
Professor of Public Law at the University of Nairobi Law School when the article was published in the context of
research project at the University of Florida, USA.
79
Okoth Ogendo, ibid.

21
Constitutions focused on rules; not principles, not values, not policies, not social

norms…]. Third, the constitutions as a set of common aspirations or expectations.

Fourth, the constitution as a social and economic programme [cf. Constitution of China and those of
socialist states at the time].

Fifth, constitutions as an important juridical fact.80 My understanding is that for a norm or text to be
regarded as a Constitution, it must exist, or be ascertainable as a matter of fact. And that it must be a
law or have juridical (legal) effect or force as a matter of fact. This is why many Constitutions state
that as a matter of fact, it is a (supreme) law (Article 2(1) of the Constitution 2010 and section 3 of
the 1969 Constitution.

Ghai’s reform?....

Prof Jackton Boma (JB) Ojwang argues that the constitution is the scheme of organization of
public responsibilities which must be performed in any community. It identifies or prescribes the
public organs of the community and vests in them (or recognizes in respect of them) particular
roles which are to be performed in the interest of the people as a whole.81

A constitution is a normative system and a way of life. It embodies core juridical or legal, cultural,
economic, political and social values of the society concerned. Every constitution has written and
unwritten components i.e. concrete and abstract aspects. The abstract aspects are sometimes called
the intendment or the spirit of the Constitution.
The core values have:

(a) legal and constitutional character

(b) embody institutional and structural relations
(c) are moral and ethical norms and standards
(d) constitute political culture.82
The emphasis is that the constitution is way of life; it is living law. This idea was emphasized in
numerous cases. In Njoya & Others v. A-G and Others Justice Aaron Ringera went even as far as
problematically stating that the Constitution has a soul and has consciousness.83

Profs Ben Nwabueze, Yash Ghai, Okoth Ogendo, JB Ojwang’; Issa Shivji, and other scholars of
comparative African constitutional law and democracy have adopted an essentially political and
“power limiting” perspective in defining a Constitution. In a passage worth quoting in extenso,

80
Ibid.
81
J.B. Ojwang (1990) Constitutional Development in Kenya: Institutional Adaption and Social Change, African
Centre for Technology Studies (ACTS), Nairobi, Kenya, at 1. Prof Ojwang published the book when he was a
professor at the University of Nairobi Law School. He later became Dean, then High Court Judge and then one of the
inaugural (seven) Supreme Court Justices.
82
On the foregoing, see works of Prof Ben Obi Nwabueze, Yash Pal Ghai, Okoth-Ogendo, J.B. Ojwang and Ben
Sihanya. 83 This was from the case of Ndynabo v. Attorney-General [2001] 2 EA 485.
22
Nwabueze states:

“A constitution is a mode of organizing a state and its government. It is, in other words, a body of
fundamental principles according to which a state is structured. This emphasizes its character as
essentially political, with an authority and sanction sounding in the realm of politics. This was its
original meaning and effect. Even today this approach to the purpose and function of a
constitution has its adherents.”84

Nwabueze adds:

“There are many countries that still consider the appropriate function of a constitution to be a
political charter of government, consisting of largely declarations of objectives or directive
principles of government and a description of the organs of government in terms that import no
enforceable legal restraints. Such a constitution has no more than a political existence; its
provisions are political, not legal, serving merely to exhort, to direct and inspire governmental
action, and to bestow upon it the stamp of legitimacy.”85

I problematize this “political determinism” and the “limitation of power” of constitutions and
propose a model and reconceptualization that appreciates the constitutional sociology, balance
among the economic, social and political, hence the social and political economy, and cultural
politics as well as the change problematique in Kenya and Africa.

I also problematize the Montesquieuan model of limitations and power restraints that inform
classical British constitutional democracy, English administrative law, and post-independence
African constitutional scholarship and lawyering. I propose a more nuanced liberty enhancing and
facilitative theory that focuses on the role of a Constitution (especially 2010) in facilitating
enjoyment of liberty, progressive exercise of public power, and governance, institutional or
administrative processes….. It captures the practices in emerging or contemporary strand in British
(not just English) and American constitutional democracy (especially variants among some
democratic and progressive US scholars).

1.3 Nomenclature in Constitutional Democracy: Constitution, State, Government,

Governance and Cognate Doctrines
The quest for an appropriate Constitution has been the quest for equity, inclusion, participation, the
rule of law, due process, human rights and democracy. That quest is captured by constitutional
democracy. Constitutional democracy is clearer because it captures the foregoing and related
concerns. It is also the product of interdisciplinary and multi-disciplinary engagement.

1.3.1 Constitutional democracy in Kenya and Africa

Constitutional democracy is an omnibus concept or doctrine. It captures, incorporates and deploys

84
Ibid, at 20-21. For a keen study and operationalization of the political perspective of the 1963 and 1969 Constitution
of Kenya, see Yash. P. Ghai & J.P.W.B. McAuslan (1970, 2001) Public Law and Political Change in Kenya: A study of
the legal framework of Government from colonial times to the present, Oxford University Press, London.
85
Nwabueze, ibid.

23
numerous concepts including constitution, constitutionalism, separation of powers, checks and
balances, human rights, the rule of law and democracy. Thus constitutional democracy relates to
the constitution in its normative, documentary and instrumentalist sense; to the State and state
structures; and to Government.

Constitutionalism, the rule of law, democracy and human rights assume or deploy important
concepts such as sovereignty, nation, nationalism or the national question, nation state,
Government and governance.

An illustrative definition of constitutional democracy may take three perspectives. First, a state or
polity may have a constitution but no or limited or equity, rule of law, or democracy. This may be
because the text includes inequitable or anti-democratic rules, principles or values, or because the
practice or operationalization abrogates or undermines a progressive or transformative
constitution. Kenya under Jomo Kenyatta, and Daniel Arap Moi fall under the first sub-typology.

The Constitution was amended to concentrate power in the President directly or to institutionalize
the Kenya African National Union (KANU) as the sole party and to nullify freedoms of
expression, association and assembly while creating an imperial president. Kenya under Mwai
Kibaki and Uhuru Kenyatta (Kenyatta 2) fall into the second sub-typology.

Second, a state may have no Constitution (in the sense of a written text); and still enjoy equity or
democracy. Greek city states are a leading example, judged by the values of their time.86
Moreover, following the Inter Parties Parliamentary Group (IPPG) of 1997, Kenya enjoyed a
limited measure of constitutional democracy without an appropriate constitutional text in some
matters.87
For instance, the appointment of members of the Electoral Commission of Kenya (ECK) was
embodied in a “gentle people’s understanding” or social norms, between President Moi and the
opposition leaders like Mwai Kibaki of the Democratic Party (DP), Raila Odinga of the National
Democratic Party (NDP), and Wamalwa Kijana of Ford Kenya.88 There was also greater freedom
of expression, association and assembly even though the one-party Constitution and legal system
had not been thoroughly reformed or reviewed.89

Third, [to review] …. constitutional democracy thus means the convergence between democracy
and constitutionalism. There is a constitution in both senses; it embodies democracy; and the state
or polity practices constitutionalism and democracy. The majority have their way. The individuals
or minorities have their say, respectively.90

86
Cf……
87
See discussions of IPPG and constitutional democracy without a constitution(al) text).
88
…….
89
BA Ogot & W.R. Ochieng (1995) Decolonisation and Independence in Kenya: 1940-1993, East Africa Educational
Publishers Ltd, at 247.
90
Issa Shivji (ed) (1991) State and Constitutionalism: An African Debate on Democracy, Southern Africa Political
Economy Series (SAPES) Trust, Harare, 3-26; Issa Shivji (1989) The Concept of Human Rights in Africa, CODESRIA,
Dakar. See also Chapter 15
below. 24
Ben Nwabueze has dedicated five volumes to the quest for constitutional democracy in Africa. 91
Nwabueze’s work on constitutional democracy is original and insightful. But there are some
challenges. What is clear, which I pursue in this Chapter is that the Constitution of Kenya 2010 is
change-oriented, transformative and revolutionary to an extent that Ben Nwabueze, HWO Okoth
Ogendo, Yash Ghai or Issa Shivji could not have anticipated in their (earlier) works they wrote.

Some of the key contributions to the quest for constitutional democracy in Kenya and Africa have
been (constitutional) lawyers. Some emphasize normative or rule-based, regulatory perspectives,
including how (constitutional) rules relate to (socio-economic) factors. Political scientists focus on
agency or institutional styles…political economists focus on…..

Political and social historians call attention to the history and contemporary development or
relevance of ideas about constitutional democracy and governance.92 Sociologists emphasize the
significance of social structures in constitutional democracy.93 Anthropologists focus on social or
identity politics and relations. Anthropologists share some concerns with sociologists. 94
Significantly, constitutional democracy faces the challenge of limited contemporary
interdisciplinarity engagement especially on ……… economic and administrative incompetence
and inefficiency; political exclusion, and non-participation; and lack of juridical and constitutional
equity and due process…. ….

1.3.2 Constitutionalism in Kenya and Africa 95

What is constitutionalism in Afro-Kenyan, Western and global contexts? Constitutionalism and
constitutional democracy has contextual internal and external characteristics. In Kenya and Africa,
the focus is three-pronged. First, constitutional text, structure and practice or history that
recognizes

91
Benjamin Obi Nwabueze (2003) Constitutional Democracy in Africa Vol. 1-5, Spectrum Books, Nigeria. 92 ES Atieno
Odhiambo (2002) “Hegemonic enterprises and instrumentalities of survival: Ethnicity and democracy in Kenya,” 61,
African Studies Review 223- 249; ES Atieno- Odhiambo (1988) “Democracy and the Ideology of Order in Kenya,” in
Walter Oyugi, ES Atieno Odhiambo, Michael Chege, Afrifa Gitonga (eds) (1988) Democratic Theory and Practice in
Africa, 111-138, Heinemann, Portsmouth; B. A. Ogot (1967) History of the Southern Luo: Migration and Settlement,
1500-1900, East African Publishing House; ES Atieno Odhiambo (2002) “Introduction: Bethwel A. Ogot and the
crucible of East African scholarship, 1964-1980,” in Toyin Falola and ES Atieno Odhiambo (eds) The Challenges of
History and the Burden of Leadership in Africa: The Essays of BA Ogot, Africa World Press, Trenton, New Jersey &
Asmara; William R. Ochieng and ES Atieno-Odhiambo (1995) “Prologue: On decolonization,” in BA Ogot and WR
Ochieng’ (eds) Decolonization and Independence in Kenya 1940-1993, East Africa Educational Publishers Ltd; ibid;
Vincent Simiyu (1988) “The democratic myth in the African traditional societies,” in Walter Oyugi, ES Atieno
Odhiambo, Afrifa Gitonga and Michael Chege (eds) (1988) Democratic Theory and Practice in Africa, Heinemann,
Portsmouth, 49-70.
93
Max Weber (1919) “Politics as a vocation,” at http://anthropos-lab.net/wp/wp-content/uploads/2011/12/Weber
Politics-as-a-Vocation.pdf (accessed 27/7/2016); Marx Weber (1946) “Science as a Vocation,” Palgrave Macmillan;
Charles A. Ellwood (1911) “Marx’s economic determinism in the light of Modern Psychology,” Vol. 17, No. 1,
American Journal of Sociology, 35-46.
94
Archie Mafeje (2001) Anthropology in Post Independence Africa: End of an Era and the problem of Self-
Redefinition, Monograph under African Social Scientists Reflection, Heinrich Boell Foundation, Nairobi, Kenya. 95 This
section has been refined from Ben Sihanya (2013) “Constitutionalism and the Rule of Law in Kenya’s Electoral
process,” Handbook on Elections Disputes in Kenya under the auspices of the Judiciary Working Committee on
Elections Preparation (JWCEP) and the Law Society of Kenya, at 22-56.
25
life, liberty and livelihood. Second, constitutional text, structure and practice or history that
focuses the use of public power to promote and facilitate life, liberty and livelihood. Third,
constitutional text, structure and practice or history that limit the use of power, to avoid abusive
constitutionalism.

Constitutionalism draws on particular cultural and historical contexts from which it emanates; and
it resides in public consciousness.96 It involves three (3) main rubrics: First, application of
constitutional state power to organise and structure Government. Second, applying constitutional
and state power to expand rights, liberties, power construction and rights protection as well as
promotion. Third, limiting the power of state agency and officials.

According to Prof Vicki Jackson and Prof Mark Tushnet, constitutionalism involves having the
rule of law applied to the governed and government officers; judicial independence and the
observance of human rights. It is a commitment to limitations on ordinary political power. It
revolves around a political and socio-economic process, one that overlaps with democracy in
seeking to balance state power and individual and collective rights.97

Prof HWO Okoth-Ogendo views constitutionalism as a struggle which cannot be achieved through
the promulgation of a Constitution per se (as such). As noted, the Constitution should limit the
powers of the Government, establish the rule of law, protect human and people’s rights and foster
democracy.

However, most Afro-Kenyan African constitutions were enacted and have been amended or
applied to remove any checks on governmental power, to limit the power of the sovereign people,
to subject them to the will of the President and his or her Government, and to restrict or deny
them most fundamental human rights. And even Kenya’s progressive Constitution 2010 is
suffering and threatened by reversals.98

Okoth-Ogendo further describes constitutionalism thus:

“The idea of constitutionalism must, in the very first instance imply that a society acknowledges
its constitution as a living standard with which the conduct of public behaviour should conform
and against which it must be evaluated. The minimum evidence of adherence to the principles of
constitutionalism is therefore public respect for the constitution, in whatever form, of the society of
which one is a member. Other elements must include – fidelity of life under law i.e. respect for the
rule of law and – protection of human rights, including those of communities and minorities.”

According to Prof Ghai and Prof Issa Shivji, constitutionalism refers to fidelity to a constitutional
order that extends past the norm or constitutional text, to the national and transnational laws and

96
See Vicki Jackson & Mark Tushnet (2006) Comparative Constitutional Law, Foundation Press, New York (2 ed).
nd

97
…….
98
Cf. Ben Sihanya (2004-2020) “Constitutional Law Class Teaching Materials,” University of Nairobi Law School, filed
at Sihanya Mentoring & Prof Ben Sihanya Advocates, under review for publication as Constitutional Democracy,
Regulatory and Administrative Law in Kenya and Africa, (CODRALKA) Vol 1: Presidency, Premier, Legislature,
Judiciary, Commissions, Bureaucracy and Administrative Justice in Kenya, Sihanya Advocates, Innovative Lawyering
& Sihanya Mentoring.

26
rules. Ghai defines constitutionalism in at least two (2) ways. First, that it involves obedience of
systems that respect an order where power belongs to state offices (not individuals). Second,
constitutionalism as a source of power and an equally “power limiting source”99.….

And Prof JB Ojwang’ principally defines constitutionalism in terms of Government restraint:

“Constitutionalism really means government that is subject to restraint, in the interest of the
ordinary members of the community; government that is not arbitrary or totalitarian… A
constitution may or may not embody the principle of constitutionalism. Where a constitution
contains clear checks and balances to the exercise of public power, it will serve as an
underpinning for the principle and practice of constitutionalism.”

Prof Ben Nwabueze has defined constitutionalism thus:….100

Constitutionalism is thus the habitual acceptance of the rules enshrined in the Constitution or
consistent with constitutional values and principles as the ultimate bases of political choice. Where
there is habitual acceptance and adherence to principles and rules in the Constitution, the rule of
law and the supremacy of the Constitution as stipulated under Article 2 of 2010 Kenyan
Constitution, constitutionalism, will be achieved.101

Okoth-Ogendo and other scholars have emphasized that there is the emergence in Africa of the
phenomenon of constitutions without constitutionalism.102

And in a later essay, he described the phenomenon of constitutionalism without constitutions. This
is where in some cases progressive constitutional principles, values and practices have evolved
without a change in the constitutional text.103 Some US scholars call this translation,104 or changing
interpretation; and may be influenced by local, national, or transnational circumstances.

Thus, in Kenya in the post 2018 period, there is general consensus that Kenya has been misruled
four (4) presidents, that there has been widespread electoral fraud, rigging and irregularities,
especially in presidential elections; and that there has been institutionalized tribal exclusion and
demonization of Raila Odinga….105

1.3.3 Autochthony and the development or typology of the Kenyan Constitution, State,
Government and Governance
Autochthony relates to the idea of a homegrown, indigenous, nationalist constitution; one that

99
Yash Ghai (2020) “Constitutions and Constitutionalism,” in Nic Cheeseman, Karuti Kanyinga & Gabrielle Lynch
(eds) (2020) The Oxford Handbook of Kenyan Politics, Political Science, Regional Studies.
100
Ben Nwabueze (1973) Constitutionalism in the Emergent States, Fairleigh Dickinson University Press. 101 Cf. sec 3 of
the 1969 Constitution. Article 2 provides, in material part, as follows: “The Constitution is the supreme law of the
Republic and binds all persons and all State organs at both levels of government.” 102 HWO Okoth Ogendo (1993)
“Constitutions without Constitutionalism: Reflections on an African political paradox,”….
103
See the discussion on Inter Parties Parliamentary Group (IPPG) consensus above, and discussions below.
104
Cf. Lawrence Lessig (1993) “Fidelity in translation,” 71, Texas Law Review, 1165, q.v.
105
This is based on changing economic, social and political realities, without a change in constitutional text (mainly, in
the US the constitutional text on rights was interpreted by the Supreme Court and then authorities differently in 1859?
Vis-à-vis the US 1954 US case of Brown v. Board of Education of Topeka; US Supreme Court case of Dredd Scott v.
Sandford 60 US 393.

27
captures a common history or origin of the people duly constituted into a state; their present or
contemporary challenges and opportunities, and their common future applications.106

Constitutional autochthony is the process of asserting autonomy and hence constitutional

nationalism vis-a-vis an external legal or political power. It is concerned with instilling sentiments
of patriotism, pride, national consciousness and identity in the people of a given state.107

According to Ben Nwabueze, autochthony, constitutionally, has two (2) main aspects: First, it relates to the
source from which the constitution derives its authority as law e.g. from imperial authority or
colonial masters or from the local enacting body.108 Second, it relates to its content i.e. the frame of
Government which it establishes and to its contents.109

On constitutional origin, K.C. Wheare writes:

 “for some members of the commonwealth, it is not enough to be able to say that they enjoy a
system of government which is in no way subordinate to that of the United Kingdom. They wish
to be able to say that their constitution has force of law and if necessary, of supreme within their
territory through its own native authority and not because it was enacted or authorized by the
parliament of the United Kingdom – that is to speak, ‘home-grown,’ sprung from their own soil,
and not imported from the United Kingdom.”110

The emphasis given by K.C. Wheare as elaborated by Ben Nwabueze is that since the constitution
is the foundation of the state, it is necessary that this foundation should be made locally. This is to
remove any possible misunderstanding about the status of the country that might arise from the
fact that its constitution was enacted by a former imperial power.111

Autochthony is closely related to the original understanding of the Constitution: how did the
founders and founding generation understand the relevant constitutional text or principle?

The importance of constitutional autochthony relates to the content and the origin of the
constitution. Whether legal autochthony requires that the constitution be enacted by a native
authority or by an imperial or colonial authority, people’s aspirations can work in both
circumstances.112

106
Cf. the definition by The Free Dictionary, at http://www.thefreedictionary.com/autochthony(accessed 22/3/2016).
107
See Nwabueze (1974) Presidentialism in Commonwealth Africa, ibid, at 59.
108
Nwabueze (1974) Presidentialism in Commonwealth Africa, ibid.
109
Nwabueze, ibid.
110
As cited in Nwabueze (1974) Presidentialism in Commonwealth Africa, C. Hurst & Company, London, at 59. 111 Ghai
& McAuslan (1970), op. cit. Ghai coined a graphic phrase with reference to developing states: “the constitution that
came in from the cold.” See Ghai (1993) “Constitutions and Governance in Africa: A Prolegomenon,” in Sammy
Adelman and Abdul Paliwala (eds.) Law and Crisis in the Third World, Hans Zell Publishers, London. 112 Hans Kelsen’s
argument that what matters is the efficacy of the grund norm (or constitution); the fact that it is habitually obeyed.
Remarkably, Kelsen affirms that validity is not (necessarily) based on the grund norm’s popular legitimacy or technical
validity. It may have originated from a conqueror, or an usurper. The main argument for the Constitution of Kenya 2010
has been autochthony in terms of local origin and local content. It was about popular sovereignty or popular
participation in process and content.
28
Constitutional reforms can be initiated and realized through implementation of the constitution.

Originalism supplies the historical experiences, precedent and the travaux preparatoires (or
record of proceedings that attended the negotiation and adoption.113 Nationalistic sentiments can
be instilled as the citizens look back to the origin, the present state and the future
(optimistically).114

Autochthony has sometimes been interpreted as Africanisation, Kenyanisation or ethnicisation, in

terms of conceptualising, designing, implementing, enforcing or reforming the Constitution. But
it has sometimes taken the negative connotation of tribalisation, depending on the ethnic
oligarchy, dynasty, aristocracy or kleptocracy that is controlling.115
 At independence, autochthony was a broad-based concept captured in terms of “African” dignity
by the leading theorist, strategist or architect and tactician of Kenya’s Independence Constitution,
1963 and nationhood, Thomas (Tom) Joseph Odhiambo Mboya.116

1.4 Typology of constitutions, states and governments in Kenya and Africa The methodology
for studying constitutions may fall into a three-pronged typology. First, constitutions may be
studied in terms of a dichotomy which focuses on similarities and differences among liberal,
socialist and African constitutions. Second, they may be studied in reference to the internal or
supranational organization (or “constitution”) under the various state constitutions.

Under the second typology, there are republican constitutions, federal constitutions, confederal
constitutions and regional or majimbo, provincial, or devolved (county- national governments) (or
regional, quasi-federal), Constitutions. There is also presidential executive, parliamentary
executive or the hybrid, semi-presidential executive that is an amalgam of the two (2). This
focuses on how the state, state structures and governance are organized.

The third typology is whether the constitutional text is written or not. It has been debated in
classical and in the contemporary context. It is useful to ask what and how many written texts
have constitutional value and effect. These three (3) typologies are themselves problematic. At
this point, they are work in progress.117

113
That is one of the reasons why the US and South African constitutional experiences are increasingly important in the
incorporation, implementation, enforcement and reform of the Kenyan 2010 Constitution.
114
Ben Nwabueze (1974) Presidentialism in Commonwealth Africa, op. cit.
115
Kikuyunisation of the political economy and hence the constitutional process.
116
Tom Mboya (1963) Freedom and Africa, Little Brown, London; Chinua Achebe characterized Mboya and Nyerere
as clear-minded and progressive thinkers as compared to Obafemi Awolowo and Nnamdi Azikiwe (“Zik”) who were
consumed by ethnic bigotry (especially Awolo), and mediocrity. See Chinua Achebe (1983) The Trouble with Nigeria,
Heinemann Publishers, London; Chinua Achebe There was a Country: A Personal History of Biafra Heinemann
Publishers, London. But was Kenya’s Independence constitution largely modeled on or drafted or recommended by Sir
Willliam Ivor Jennings? Was it picked from the bookshelf of Sir Ivor Jennings? Cf. William Ivor Jennings (1993) The
Law and the Constitution, University of London Press.
117
A clearer and finer typology of constitutions, states, and governments must await ongoing research at Sihanya
Mentoring and Sihanya Advocates under the CODRALKA series: Constitutional Democracy, Regulatory and
Administrative Law in Kenya and Africa (CODRALKA).29
There are serious overlaps among these classifications. They are sometimes conflated, convoluted,
confused and obscure.

There is therefore a difficulty in finding an exhaustive typology and classification of constitutions.

In this study, I seek to review the emerging methodology or formulate appropriate constitutional
typology based on research on national, comparative and related transnational practice and
analysis focusing on Kenya and the following, among others: South Africa, Nigeria, Uganda,
Tanzania,
Egypt, USA, UK and Germany, China and Japan.
 1.5 Broad or General Categories of Constitutions, States and Governments The
contemporary, non-ideological, but perhaps formal and liberal conception of state is largely
traceable to the Peace Treaty of Westphalia in the 17th century of 1648. 118 A leading Kenyan
comparative constitutional scholar Prof Yash Pal Ghai, and other scholars have worked with a
three-pronged typology of constitutions and states: liberal, socialist and developing states.
Remarkably, the socialist category is now mainly important as critique of the (theoretically)
dominant liberal-oriented state.

The key parameters are three (3): First, economic organization or the role of the government and
the market in resource allocation. This includes property rights and how they are held; and the role
of contract v. the national or sub-national development plan). Second, is the political organization,
especially the production, reproduction and distribution of political power, including the form of
Government and the quality of governance, the rule of law and human rights. My ongoing research
seeks to integrate on third typology by integrating socio-cultural variables, phenomena or
parameters such as cultural politics, political culture and identity politics.

A state can be conceptualized as a distinct set of political institutions whose specific concern is the
organization of domination, in the name of the common interest, within a common territory.119
Max Weber and Weberians also define a state in terms of the entity with the authority for the
legitimate use of violence. The precise definition of a state has been the subject of scholarly,
political, and popular contestation.120

The generally accepted formal definition of the state is embodied in Art. 1 of the Montevideo
Convention of 1933 on the Rights and Duties of States. A state is defined to have the following
four characteristics.

First, a permanent or stable population. Constitutions, international law, and state(hood) are

118
The treaty was signed between May and October1648.
119
Cf. Ben Sihanya (2004-2021) “Constitutional Law Class Teaching Materials), University of Nairobi Law School,
filed at Sihanya Mentoring & Innovative Lawyering, op. cite under publication as Ben Sihanya (2021) Constitutional
Democracy, Regulatory and Administrative Law in Kenya and Africa (CODRALKA 1) Vol. 1: Presidency, Bureaucracy
and Administrative Justice in Kenya (Revised Teaching Notes on Constitutional Law and Comparative Constitutional
Law by Ben Sihanya 2004-2021) Sihanya Advocates & Sihanya Mentoring, Nairobi & Siaya.
120
Iain McLean & Alistair McMillan (2009) Oxford Concise Dictionary of Politics, Oxford University Press, New York,
(3rd ed) at 507.

30
primarily about people.121

Second, a defined territory. Borders or boundaries are certain, can be established or ascertained
using maps and instruments.122

The border may be in the water or maritime, or land. Either way, there may be clear beacons.
International colonial borders are to be respected. Why walls as proposed by President Donald
Trump and Kenyatta-Ruto? Security? Tenderpreneurship? Paranoia?123

They may be questioned only peacefully under international law through the UN Security Council
or the International Court of Justice (ICJ), an agency of the UN.124

Third, there must be an effective government;125

Fourth, the capacity to engage in international relations, transactions and exchange with other
states or international persons. This includes protecting its citizens within the state and abroad;
protecting non-citizens within the territory;126 recognizing other countries’ passports; trade, as
well as incur and settle debts, among others. This is closely related to the presence of an effective
government.127

Once an entity fulfils the above, it should be recognized in international law or transnational legal
process (TLP)128 as an international person in this case a state.

121
E.g. Kenya had about 38.5 million people in the 2009 census about 43 million in 2013 and about 46 million people in
2016…..in 2019….2021… The growth rate is estimated at 2.61% per annum. Some officials say Nigeria has a
population of between 120-150 million. Why is the total and the voting population in Kenya, Nigeria, and other African
states usually a matter of conjecture? Why are censuses always generally or ethnically and regionally? Is it to
manipulate the resource allocation and the electoral outcomes?
122
This also means that national, state, domestic or municipal laws only apply within the state territory. A few
exceptions are the conflict of law rules in private commercial and social transactions; and in public law where USA
sanctions illegally applies extraterritorially its trade, competition, IP and security and tax laws.
123
…..
124
Cf. Amin of Uganda questioning Kenya-Uganda border in 1976. See Nigeria v. Cameroon…. Maritime Delimitation
in the Indian Ocean (Somalia v. Kenya)….. ….
125
What is an effective or efficacious government? A effective government is one that is habitually obeyed; compare
“effective government” to the Afro-Kenyan debate; recognition of state v. government v. head of state or government.
Hans Kelsen’s pure theory of law, on the origin, validity and change of the grund norm or government provide useful
insights into the question of effective government or valid or legitimate constitutions. See Ben Sihanya (2011)
“Reconstructing the Kenyan Constitution and State, 1963-2011: lessons from British, American, German and African
constitutionalism,” Law Society of Kenya Journal in 2010. Cf. USA, Nigeria, Zimbabwe (1965), Uganda (1966, 1967,
1971, 1985, 2016…); Swaziland; See also Yash Pal Ghai (2009) “Creating a new constitutional order: Kenya’s
predicament,” in Elizabeth W. Gachenga, Luis G. Franceschi, Migai Akech and David W. Lutz (eds) Governance,
Institutions and the Human Condition LawAfrica, Nairobi.
126
Cf. USA advisory and evacuating its citizens from Kenya because of insecurity; USA planning to keep low staff
levels and send in marines to protect its embassy over the years.
127
This is a big issue in many African failing and failed states. Cf. Somalia since 1981 when Somalia collapsed under
dictator General Said Barre. The UN and the African Union Mission in Somalia (AMISOM) have been the main
guarantors of security.
128
Transnational Legal Process (TLP) has been popularized by leading scholars like Yale Law Professor Harold Hongju
Koh who was the 15 Dean (from 2004 until 2009). See Harold Hongju Koh (1996) “Transnational Legal Process,” Yale
th

Law School Legal Scholarship Repository, Nebraska Law Review, at

http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=2902&context=fss_papers (accessed
8/8/2016).31
As indicated, Ghai uses a three-pronged typology in conceptualizing the constitution and state.129
We emphasize that the state and government are creatures of or reconstructed by the constitution
and international law, especially in terms of (internal) popular sovereignty (Art. 1) and (external)
state sovereignty (Art. 4).130

I begin with the main generic classifications of constitutions and states by Prof Yash Pal Ghai.

1.6The Ghaian model on Constitution, State and Government in Kenya and Africa
Yash Ghai published the chapter on his typology of constitutions and state, in 1993 while serving
as a professor at Warwick Law School. He is the co-author with Prof JWPB Mc Auslan of the
classic treatise on Kenya’s constitutional and public law: Public Law and Political Change in
Kenya: A study of the legal framework of government from colonial times to the present. Prof Ghai
has kept fidelity with constitutional democracy in theory (scholarship) and practice.131 I refer to his
relevant work as the Ghaian model on Constitution, state, nation and Government…

Ghai developed a three-pronged typology of constitutions. First, liberal states. Second, socialist
states. Third, developing state.132 There are at least three (3) approaches to these typologies. First,
this was in the context of the quest to understand an emerging global order in the wake of the
decline of the Cold War following the collapse of the Berlin Wall and the socialist Soviet empire.
Second,
there was Afro-pessimism. And third, was Afro-optimism based on the upsurge of liberal or
libertarian values that gave so much optimism for progressive socio economic, political and
constitutional development in Kenya and Africa.133 But why didn’t socio-cultural factors feature in
the typology and debates?

First, there are liberal constitutions, which I reconceptualize. These are largely associated with the
Western (liberal) societies and reflect the economic, social and political struggles in those
countries. They focus on individual liberties. They emphasize justiciable rights and presuppose a
well-functioning Judiciary. The US Constitution 1787 and 1791 is a good example.

Others include the Constitutional instruments which undergird the British government, especially
some written fragments of British constitutional law such as the Magna Carta of 1215 (the Great
Charter),134 the Act of Settlement, the constitutional instruments regulating or governing

129
Yash Pal Ghai (1993) “Constitution and Governance in Africa: A prolegomenon,” in Sammy Adelman & Abdul
Paliwala (eds) Law and Crisis in the Third World, Hans Zell Publishers, London, 51-75.
130
Cross ref…..Art. 1 (the people as the sovereign) and Art. 4 (Kenya is a sovereign state…)… 131 See for instance, Yash
Ghai’s stewardship of the Constitution of Kenya Review Commission (CKRC), and his role in the Katiba Institute. He
has also been active as an amicus curiae (or a friend of the court; in penning important newspaper articles and
participating in civil society organisation’s (CSO’s) protests or demonstrations or related activities. among others.
132
Ibid.
133
The Japanese American scholar, Prof Francis Fukuyama announced the optimism based on liberal triumph in terms
of the end of history. See Francis Fukuyama (1992) The End of History and the Last Man, Penguin Publishers. See
Francis Fukuyama “The end of history,” The National Interest, at http://www.wesjones.com/eoh.html (accessed
23/5/2016). Three concerns. First, did ideological conflict totally end? No. Second, and assuming it did, did conflict
end? What of the upsurge in identity politics, especially ethnicity, gender, youth questions?
134
Some of the key provisions of the Magna Carta 1215 are: due process, fair trial, habeas corpus (produce ht ebody)….
See Martin
32
 devolution of power to Scotland or Wales, the Human Rights Act, 1987, the British exit (from
EU) laws, and the European Union (EU) Constitution, the European Union (EU) referendum law,
and related treaties.135

Second, there are socialist (oriented) constitutions which are largely a by-product of the Soviet
socialist (or Bolshevik) revolution of 1917 that helped diffuse them throughout the world.136 In
my reconceptualization, China played a great role in the globalization of socialist
constitutionalism. These Constitutions tended to emphasize the rights and duties of the citizen
rather than (only the rights of) the individual.137

In Africa, most of the socialist constitutions were by-products of the Cold War which was marked
by competition for turf or territory and influence between the liberal West and socialist East.
Socialism was at the core of the Constitution in Mozambique, Ethiopia and Tanzania.138 It also
influenced constitutional praxis in African states that claimed to be liberal….including Kenya and
Nigeria…thus while most African states claimed to be part the Non-Aligned Movement (NAM),
Kenya was aligned to the liberal West, and Tanzania to the socialist East…. 139

Third, there are developing country constitutions. These constitutions mainly borrow from the
two (2) types above. They are a reflection of the liberal and socialist experiences. They try to
make them indigenous or autochthonous by incorporating developing country values,
constitutional safeguards and experiences.

But these constitutions are largely contrived to serve local tribal, dynastic class or related socio
economic and political interests. For instance, the Kenyan and Tanzanian constitutions have been
influenced by German and British traditions on Parliament, administrative systems, process,
bureaucracy and justice on the one hand, and security or policing on the other, among others.140
Developing country constitutions try to address the dichotomy between the individual and the
communities as far as rights and interests are concerned.141

1.7 Applying Ghaian Generic, Ideological or Developmental Model of Classification The

Ghai methodology on classifying constitutions (and or states) has been very useful. I have

Loughlin (2013) The British Constitution: A Very Short Introduction, Oxford University Press, Oxford, at
https://global.oup.com/ukhe/product/the-british-constitution-a-very-short-introduction
9780199697694?cc=gb&lang=en& (accessed October 18, 2020).
135
…..
136
On Bolshevik dissemination.
137
Ibid.
138
Constitution of Tanzania, 1977; Constitution of Ethiopia, 1995; and the Constitution of Mozambique. 2004. These
have been amended or superseded following neoliberal trends.
139
…..
140
Kenya was British Protectorate and Colony from 15/6/1895 and 1920, respectively. Tanzania (Tanganyika and
Zanzibar) was a German, then later a British colony.
141
Cf. the African Charter on Human and People’s Rights (the Banjul Charter 1981). However, the 16km (10 mile)
coastal strip remained a protectorate upto independence in 1963. Hence the reference to Kenya as colony and
protectorate. See John Lonsdale (1998) “The Moral Economy of Mau Mau: Wealth, Poverty and Civic Virtue in Kikuyu
Political Thought, in Bruce Berman and John Lonsdale (1998) Unhappy Valley: Conflict in Kenya and Africa,
University of Michigan; …. Article 63 of the Constitution provides a basis for community land rights. See Community
Land Act, 2014.
33
reconceptualized, modified or elaborated on it using two (2) parameters: economic organisation
and political organisation. My ongoing research seeks to integrate cultural politics, identity
politics and political culture.

But the typology above has at least three (3) problems. First, Socialist states, for instance, have
largely disintegrated especially after the collapse of the Berlin Wall from about 1989 that marked
the withering away or end of the Cold War.142

Second, the typology is also not sufficiently representative. It is arguably unbalanced because
during the climax of the Cold War, there were very few (only about 7-20) confirmed liberal
constitutions and more than 160 developing country constitutions.

Remarkably, the United Nations (UN), World Bank, International Monetary Fund (IMF) and the
World Trade Organization (WTO), among other transnational organizations divide states (or
countries) into developed, developing and Least Developed Countries (LDC). But now there are
also G7 or G8 (G7 plus Russia), G20, and BRICS (Brazil, Russia, India, China and South Africa,
as the five major emerging national economies). Then there are the MINT (Mexico, Indonesia,
Nigeria and Turkey) which are regarded as developing very fast economically, after BRICS.143
These typologies focus on econometric models with limited reference to information on the UN
Development Programme’s (UNDP’s) human development index (HDI). The HDI takes into
account governance and related parameters in constitutional democracy such as liberty, equity,
gender, literacy, among others.144

Third, there were, and still are, major differences among developing country constitutions
themselves, e.g. between Kenya and Mozambique.145 [To review:]…. In the 1963-2010 period,
the Kenyan and Commonwealth African146 constitutions were largely aligned to the British
Westminster export model. Arguments for autochthony led to neo-presidential or
semi-presidential as well as (quasi) federal models, influenced by the US and France
constitutional text, structure and practice or history.147

142
The “end of the Cold War” is as debatable as the “end of history” and (ideological) conflict that was propounded by
Prof Francis Fukuyama, a Japanese American scholar. See Francis Fukuyama (1992) The End of History and the East
Man, op. cit.
143
There was debate in African constitutional democracy, political economy and cultural politics whether Botswana,
Ghana, and Nigeria are democratizing faster while the largest economies are Nigeria, Egypt and South Africa in that
order. There is also an argument that Nigerian economy became the largest in Africa when the informal sector is taken
into account. And that the South African economy remains the most sophisticated. See the discussion on BRICS and
MINT in Chapter 2 of this book.
144
The Human Development Index (HDI) is now applied by numerous scholars, as well as states and transnational
institutions like the World Bank and the WTO. See United Nations Development Programme (UNDP) (2015) “Human
Development Report 2015 Work for Human Development,” at
http://hdr.undp.org/sites/default/files/2015_human_development_report.pdf(accessed 9/9/2016); World Bank (2015)
“World Development Report: Mind, Society and Behaviour,” Washington, DC. These are the issues that animate “law
and (sustainable) development. See also Chapter 5 of CODRALKA 1.
145
Ibid.
146
This is the Anglophone African constitutional tradition. Cf. the works of Ben Nwabueze, Yash Ghai and Issa Shivji
cited elsewhere in this paper.
147
See this study in Ben Sihanya (forthcoming 2021) Constitutional Democracy, Regulatory and Administrative Law in
34
1.8 Typology of Governments in Kenya and Africa
What is a government? Serikali in Kiswahili and Sirkal in (Dho)Luo? The Black’s Law Dictionary
and relevant authorities define Government in six (6) ways. First, Government is defined as an
organ of the state in terms of its traditional Western organization or structure in terms of the three
arms:

“The government is but an agency of the state distinguished as it must be in accurate thought
from its scheme and machinery of government. In the US interpretation government consists of
the executive, legislative and judicial branches in addition to administrative agencies ….”148

Second, there is also a broad conceptualization of government under the Constitution of Kenya
2010. The Government in Kenya includes the National and the County Government. The County
Government has two (2) arms: the County Executive led by the Governor and County the County
Assembly presided over by the Speaker of the County Assembly.

Third, Government also includes the (more than?) thirteen (13) constitutional commissions149 and
(more than?) two independent offices, namely Controller of Budget (CoB) and the Auditor
General.150

Fourth, government is “the system of a polity in a state; that form of fundamental rules and
principles by which a nation is governed or by which individual members of a body politic are to
regulate their social actions.”151 It refers to the institutions, rules and administration of state
authority.152

The fifth definition focuses on the administrative bureaucracy as a unitary category: “the whole

Kenya and Africa (CODRALKA 3) on (The Presidency and Public Authority in Kenya’s New Constitutional Order),
Chapter 4; Ben Sihanya (2011), Constitution Working Paper series No. 2 Society for International Development (SID)
Eastern & Central Africa, Nairobi, at http://www.sidint.net/docs/WP2.pdf. (accessed 16/6/2014). 148 Henry Campell
Black (eds) Black’s Law Dictionary, op. cit. Are the administrative agencies part of the executive? Or independent? Cf.
on the dependence of the 13 or so constitutional commissions and the two independent offices on the executive, and
especially the presidency. See Chapter 15 of the Constitution entitled “commissions and independent offices.” Some of
the constitutionally independent but politically dependent or subservient commissions include the defunct commission
for implementation of the Constitution (CIC), the Independent Electoral and Boundaries Commission (IEBC), Public
Service Commission (PSC), Judicial Service Commission (JSC), and the National Land Commission (NLC). See Ben
Sihanya (2013) “Constitutional Commissions in Kenya: Experiences, Challenges and Lessons,” a study under the
auspices of the Friedrich Ebert Stiftung (FES) presented at the Conference on State of Implementation of Constitution
since 2010 on November 20, 2013 at Laico Regency, at http://www.fes
kenya.org/media/publications/Constitutional%20Commissions%20-
%20Prof.%20Ben%20Sihanya.pdf (accessed 7/9/2016), in Chapter 20 of CODRALKA I… 149 These are: Independent
Electoral and Boundaries Commission (IEBC), Ethics and Anti-Corruption Commission (EACC), Parliamentary Service
Commission (PSC), Commission for the Implementation of the Constitution (CIC), Kenya National Human Rights and
Equality Commission (KNHREC), National Land Commission (NLC), Judicial Service Commission (JSC),
Commission on Revenue Allocation (CRA), Public Service Commission (PSC), Salaries and Remuneration
Commission (SRC), Teachers Service Commission (TSC), National Police Service Commission (NPSC), National
Gender and Equality Commission (NGEC). See Chapter 20 of CODRALKA 2…. 150 Cf. Article 228 and 229 of the
Constitution of Kenya 2010.
151
Henry Campbell Black, Black’s Law Dictionary, op. cit., at 545.
152
Iain McLean & Alistair McMillan (2009) Oxford Concise Dictionary of Politics, Oxford University Press, New York,
(3 ed), at 226.
rd

35
class or body of office holders or functionaries considered in the aggregate, upon whom devolves
the executive, judicial, legislative, and administrative business of the state.”153

Sixth, is a pejorative and represents the perception of government as a coercive agency: “In a
colloquial sense the US or its representatives, considered as the prosecutor in a criminal action; as
in the phrase, the government objects to the witness.”

Seventh, Government is not equivalent to the Executive, which is one of its three arms.

Eighth, Government is not equivalent to the President who is only the head of one of the three (3)
arms (the Executive), and who can constitute, nominate or appoint a small part of the Government
under the 2010 Constitution. Moreover, the President only appoints a small fraction of the
Government officials. Thus, it is problematic to refer to “my Government” in the possessive sense.
But the President or any Kenyan may refer to “my Government” or “my country” in the sense of a
sense of belonging or recognition….

Relatedly, President Mwai Kibaki claimed to “re-organize my Government to make it more

cohesive and better able to serve the people of Kenya,” while referring to the sacking of pro-Raila
Odinga Cabinet Ministers after the Kibaki’s faction lost the 2005 constitution-making
referendum.154

Ninth, Government is sometimes confused with the coercive or executive ministries, or Cabinet
secretaries (CSs), Ministries, Departments and Agencies (MDAs) like security (especially internal
security) and, finance (Treasury).155 Thus, other MDAs which are also part of Government
wrongly refer to only these two (2) as “the Government.” Intriguingly, a commissioner in one of
the constitutional commissions in Kenya once declared in a debate and university conference that
commissioners were not part of Government. I asked him: “is your commission part of the private
sector? Civil Society Organization (CSO)?”

Tenth, Government is conflated with the A-G partly because the A-G used to represent the
Government in civil and criminal matters. Moreover, the powerful and long serving A-G Charles
Njonjo often talked of “my Government.” Thus judges, magistrates and other judicial officers
wrongly refer to the Attorney-General (A-G) or Director of Public Prosecutions (DPP) as
Government in a manner suggesting that the judicial officers are not part of Government. Even the
First Lady e.g. Mrs Lucy Kibaki called it “my Government”.

Eighth, some politicians mislead the people that the people are the Government. There are other

examples given to further define government. These are closely related to the

153
Henry Campbell Black, Black’s Law Dictionary, op. cit., at 546.
154
BBC (2005) “Kenya's entire cabinet dismissed,” BBC, November 23, 2005, at
http://news.bbc.co.uk/2/hi/africa/4463262.stm (accessed June 10, 2021).
155
These are related to arguments on “deep state” or “system.”
36
conceptualization and operationalization of the constitution and state, among others.156 They are
numerous and tentatively include the following four (4):

First, federal v. confederal v. unitary governments. Nigeria is a common example of a country with
a federal system of government. Nigeria has a central government, 36 states and 774 local
governments. This is also akin to the federal system in the United States.

Second, central or national governments v. decentralized or local governments. The Constitutions of

Kenya, South Africa, Ghana, Rwanda and Tanzania, among others entrench a s decentralized
system of government.

Third, monarchical v. republican government. The Treaty of Westphalia precipitated the decline of
feudalism and emergence of monarchical governments, especially in the West. Countries like
France embraced democracy, in place of monarchical government, after the French revolution of
1789 and overthrow of Louis XVI. Other countries adopted a constitutional monarchical system.
For instance, in the UK and Australia with the Queen as Head of State and a Prime Minister. 157

Fourth, military v. civilian governments.158 The difference lies in who constitutes and who is
actively involved in decision making. In a civilian Government, the people are involved in decision
making, while military governments are generally considered authoritarian. However, it also
notable that the military has been involved where civilian regimes failed, for instance, the Mali
President Ibrahim Boubacar Keita and Prime Minister Boubou Cisse were dethroned by the
military in August 2020. 159

Also, the Zimbabwean military deposed the 37 years-long-serving late President Robert Mugabe in
2017. This was partly driven by allegations that Mugabe had planned to be succeeded by the First
Lady Grace Mugabe.160 In a similar manner, the Sudanese military overthrew President Omar Al
Bashir, ending his 30-year rule. Remarkably, the Sudanese regime tried a military-civilian rule for
peaceful transition to a democracy, which as at this writing, had not materialized.

In other situations, it has been a case of military adventurism….

I have noticed the following five (5) problems in reconceptualizing Government: First,
Government to mean the state…. Second, government to mean executive.161 Third, government to
mean the President or presidency. Fourth, some refer to the “executive” or coercive or more
visible or

156
…
157
……
158
Cf. typology or classification of constitutions and states in Part 6 of this essay.
159
……
160
…..
161
The speakers, MPs, Judges, magistrates, and members of the executive, among others, refer to executive or executive
officials, especially those in security and criminal justice, the National Treasury and Finance as the “government.” As if
the former are not (part of) the
government. 37
powerful offices or agencies like (internal) security and Finance or Treasury as the Government.162

Fifth, some presidents, the former Kenyan Attorney-General (A-G) Charles Njonjo and even the
late Mrs Lucy Kibaki referred to “my government” in a possessive sense.163 Some think it is better
that the president refers to “my Administration,” rather than “my Government” in the ownership or
the possessive sense given that even the President may only tweak the administration and in any
event in consultation with Parliament and Judiciary164 or the relevant agencies.165

The terminology on government is thus often confused, conflated or obscure especially in relation
to the Constitution, state and in comparing the various forms of governments inter se (or among
themselves). It becomes even more complex when considering the place of the economy or market
in the Constitution vis-à-vis the Government or the state machinery.

1.9 Markets in Afro-Kenyanist Constitutional Sociology, political economy and cultural

politics
What is market? Market mechanism? A market mechanism refers to a network that involves the
exchange of money between a buyer and seller, within a regulated market with standard values,
which affects the distribution of goods and services.166 There are at least four (4) market
mechanisms. First, increase in demand. Second, decrease in demand. Third, increase in supply.
Fourth, decrease
in supply. In environmental law, there are at least three (3) market mechanisms created under the
Kyoto Protocol 2005. These are the emissions trading, Clean Development Mechanism (CDM) and
Joint Implementation (JI).

What is demand and supply? Hidden or invisible hand of the market? On the market economy,
Adam Smith remarked:

“Every individual . . . neither intendsto promote the public interest, nor knows how much he is
 promoting it . . . he intends only his own security; and by directing that industry in such a manner as its
produce may be of the greatest value, he intends only his own gain, and he is in this, as in many other
cases, led by an invisible hand to promote an end which was no part of his intention.”167

To (neo) liberal political economists and constitutional lawyers, the adoption of a hands-off
approach by the Government in market regulation plays a positive role in economic growth,
whereby the

162
This is partly because of the raw power that these agencies exercised under the 1969 Constitution, which some still
unconstitutionally exhibit under the 2010 Constitution.
163
Cf. Speeches by President Uhuru Kenyatta, former Presidents Mwai Kibaki and Daniel Toroitich Moi.
164
Through advisory opinions and other judicial processes?
165
See Ben Sihanya (2011) “The presidency and public authority in Kenya’s new constitutional order,” Constitution
Working Paper, Series No. 2 Society for International Development (SID) Eastern & Central Africa, Nairobi, at
http://www.sidint.net/docs/WP2.pdf. (accessed 18/5/2015). See Ben Sihanya (forthcoming 2021) Constitutional
Democracy, Regulatory and Administrative Law in Kenya and Africa (CODRALKA 2) on (The Presidency and Public
Authority in Kenya’s New Constitutional Order), Chapter 4, op. cit.
166
…..
167
David Ndii (2020) “Notes on Leviathan, the invisible Hhnd and moral sentiment in the time of Coronavirus,”
Elephant, April 10, 2020, at https://www.theelephant.info/op-eds/2020/04/10/notes-on-leviathan-the-invisible-hand
and-moral-sentiment-in-the-time-of-coronavirus/ (accessed July 10, 2021).
38
invincible hand of the market is left to determine demand and supply in markets.

What is the role of the people and state in the allocation of goods and services? or in the market?168
By design, the Government only intervenes in the market where the free market fails, according to
the Chicago School of law and economics…...169 The concept of free market derives from an
assumption of the efficiency of market players. Market failure may also be a result of surplus
production, dwindling or stagnant prices of goods. Market failure is attributed to at least four (4)
key factors. First, abuse of market power through monopoly or monopsony. Second, asymmetrical
information. Third, negative externalities…. Fourth, the public goods problem.170 A comparison can
be drawn from the market liberalization policy in the 1990s vis-à-vis the concept of the forces of
demand and supply should determine the market prices.

What are some of the typologies of market? Sub-national, national, regional and international
market or economy? Product markets? Relatedly, the Government’s role in a market economy is
also in the form of tax policy formulation and administration or implementation. These include
direct or indirect taxes, including income tax, value added tax (VAT), cess taxes, and taxes on
commodities such as sugar, nicotine products, and digital services.171

The assumption is that producers, distributors and consumers are always equally important in the
(political) economy and constitutional sociology. What role do peasants play in the neo-Marxist
political economy? Are there people who are not “in the economy” a la David Murathe, a Jubilee
Party official in 2017/18? How does political economy relate to political economics, cultural
politics, and constitutional or legal sociology in Kenya and Africa? Have Constitutional law and
lawyers ignored and only intestinally, rhetorically addressed market, the economy, political
economy and constitutional or legal sociology in Kenya and Africa? What is to be done?

Some scholars argue that the adoption of market mechanisms is vital in ensuring compliance with
court orders. They propose at least three (3) measures. First, that non-compliance with court orders
should be attended by costs, enforced by non-court actors. Second, that non-court actors should
provide stimulus or compensation for compliance with court orders. Third, that the decisions of the
court should provide for implementation through market mechanisms.

1.10 Sub-typologies of the State in Kenya and Africa: Patrimonial, predatory state Are there
sub-typologies of state? We reconceptualize at least four (4) sub-typologies of the state in Kenya
and Africa. First, predatory state. Second, patrimonial state. Third, rentier state. Fourth, prebendal
state.

1.10.1 Predatory State in Kenya and Africa

A predatory mean a state that promotes the private interests of dominant groups within the state

168
If market, state, people in (neo) liberal, Weberian, neo-Marxist…. political economy and legal sociology….
169
Cf. the “New Chicago School…”…
170
Chapter 1….. CODRALKA 1; IPILKA 1 at 43H, Chapter 2 to explain?)….
171
See….

39
(such as politicians, the army or bureaucrats) or influential private groups with strong lobbying
powers.172 State capture in Kenya, South Africa, Nigeria, Zimbabwe and Uganda for most of the
post-independence period.

1.10.2 Patrimonial State in Kenya and Africa

Patrimonialism is a form of political domination described by Max Weber in which authority rests
on the personal and bureaucratic power exercised by a royal or ruling household, where that power
is formally arbitrary and under the direct control of the ruler.173 Kenya (1963), South Africa
(1994), Nigeria (1960), Uganda (1962), Tanzania (1961), Ghana (1957) and Zimbabwe (1980)
have been under patrimonial rule for most of their independence on the dates indicated.

1.10.3 Rentier State in Kenya and Africa

The term rentier state is most frequently applied to states rich in highly valued natural resources
such as petroleum but can also include states rich in financial instruments such as a reserve
currency.174 In rentier state theory, the state derives most of its revenue from renting resources
(such as oil) to foreign powers.175 Examples include Nigeria, Angola….

1.10.4 Prebendal State in Kenya and Africa

The term “prebendal” refers to an economic, social and political system based on an ethnic-centred
governance or mobilization systems. In the prebendal state, politicians and the Government amass
government resources and channel development projects, appointive positions and government
perks to their constituents. Prof Richard Joseph analyses the Nigerian federal system of
Government under what he terms the “theory of prebendal politics.”176

He argues that the Nigerian decentralized system of governance, which is largely based on ethnic
regions,177 promotes the prebendal state through fragmented appropriation of resources, including
revenues from oil exploitation in Nigeria. 178 How has prebendalism been manifested in Kenya and
Africa? Prebendalism draws out the nexus between the state, economy and politics. It has been
evidenced by increased incompetence, inefficiency, discrimination, high corruption levels in
Government, state capture, tender-preneurship, rent seeking, nepotism as opposed to merit-based

172
…. See Mehrdad Vahabi (2020) “Introduction: A Symposium on the Predatory State,” Public Choice, 182(3), 233-
242.
173
…. Jean F. Médard, (2014) “Patriamonialism, neo-patriamonialism and the study of the post-colonial state in
Subsaharian Africa,” (17) Occasional Paper, 76-97; Ghai (1986) “The rule of law, legitimacy and governance,” Oxford
University Press; Ghai (1993) …..
174
…. Costigan Thomas, Drew Cottle and Angela Keys (2017) “The US dollar as the global reserve currency:
Implications for US hegemony,” 8(1) World Review of Political Economy, 104-122.
175
…. See Omeje, K (2006) “The rentier state: Oil-related legislation and conflict in the Niger Delta, Nigeria: Analysis.
Conflict,” 6(2), Security & Development, 211-230.
176
…… Richard Joseph (1987) Democracy and Prebendal Politics in Nigeria: The Rise and Fall of the Second
Republic, Cambridge University Press.……
177
The three major regions and ethnic groups are South East (Igbo), South West (Yoruba) and North (Hausa-Fulani). 178
Cf. Prof Richard Joseph, is a leading Scholar of Nigerian political process; See Richard Anthony Joseph (1983) “Class,
State, and Prebendal politics in Nigeria,” Vol. 21(3) Journal of Commonwealth & Comparative Politics, 21-38; Richard
Joseph (1987) Democracy and prebendal Politics in Nigeria: The Rise and Fall of the Second Republic, Cambridge
University Press.……

40
appointment to public office, and ethnicization of development.

Also, the consequence of having a prebendal state include high poverty levels despite natural
resource abundance e.g. Democratic Republic of the Congo (DRC) , Central African Republic
(CAR) and Nigeria; inequity and inequality in development and violent electioneering cycles due
to the allure of material gains in public office. In Kenya, this is akin to the late Josiah Mwangi (JM
Kariuki’s proclamation in 1974 that Kenya had turned into “a country of ten millionaires and ten
million beggars.”179

Also, Wycliffe Muga, a columnist in the Star newspaper averred, in apparent reference to as the
debate on “dynasties,” that they are “sons [what of daughters?] of a hereditary political elite who
absorbed all the benefits that came with independence, leaving the ‘rest of us’ destitute and having
no choice but to beg for the crumbs under their table.”180

Who are the real dynasts or dynasties in Kenya? It is a matter of blood or other bond, political and
economic inheritance…. Those who have attained economic, political or social office or status
simply because of patronage or patrimony(?) without any or much struggle, and or who perpetuate
that tradition….
This is also analyzed by Duncan Okello and MJ Gitau who postulated that state power has been
used to perpetuate inequalities in Kenya when they stated that:

“in a country where for a long time economic and political power was or has been heavily partisan,
where the state appropriated for itself the role of being the agency for development, and where
politics is highly ethnicised, the hypothesis of unequal treatment has been so easy to build.”181

Therefore, the state in Kenya and Africa has been characterized as vehicle for self-enrichment and
privilege for a few politicians and their ethnic affiliates, families and (business) associates, and an
equal measure of marginalization of ethnicities which are not “in Government.” [nexus]….

1.11 The Liberal Constitution, State, Government and Market in the Kenyan and African
Context
We use economic organization (and especially the market mechanism or principle) and political
organization in reconceptualizing liberal constitutions, state, Government and market in Afro
Kenyan constitutional democracy. The main categories of political organization revolve around
liberal versus illiberal182 versus social democracy.183

179
…..
180
…..
181
Duncan Okello & MJ Gitau (2009) Readings on Inequality in Kenya: Sectoral Dynamics and Perspectives, Society
for International Development.
182
Fareed Zakaria (1997) “Illiberal democracy,” 76(6), Foreign Affairs, 22-43. ….
183
Cf. Raila Odinga’s and ODM’s social -democracy or center left ideological approach to market and politics in the
context of the 2007 and 2013, 2017, 2022 presidential election cycles as compared to “wheelbarrownomics.”…to
explain
wheelbarrow-nomics.

41
The liberal constitution, state or government is largely regarded as the guarantor of property rights
and enforcer of contracts. It is largely based on market principles, i.e. supply and demand and
supply. It is supposed to have very little control role in the market. Regulation of transactions by
the state or government is regarded as the exception rather than the rule or the norm.

However, in certain situations the state may intervene to correct market failure, imperfections or
distortions. As discussed, there are four common causes of market failure. First, abuse of market
power through monopoly of monopsony. Second, asymmetrical information or informational
asymmetry. This is where parties to a contract do not have equal information in terms of quality
and quantity.184 Third, the public goods problem.185

1.11.1 Economic organization under the liberal constitution, state or government and market
in Kenya and Africa
Although the rulers of Kenya, South Africa and Nigeria are fond of calling these states liberal and
democratic, the liberal states have historically been between 7 to about 20, including the US, UK
Germany, Western European states, Japan, Australia and Canada.186 The economic organization of
the US, UK and Germany has been characterized by economic competition.

The constitution’s, state’s or government’s main role is to establish a regulatory, social, economic,
cultural and political system that respects (property) rights and enforces contracts. The state or
government largely focuses on governance; not doing business. The market mechanism, market
forces, or hidden hand of the market is expected to allocate goods and services to the most efficient
or optimal users.187

This model has been contested by left-o- centre parties like the Labour and the Democratic Parties
in the UK and US, respectively.188 Thus, President Barrack Obama successfully sought the
American state’s engagement in providing health care to Americans who opt for it or who cannot
afford it, under the Affordable Health Care Act, 2010 (aka Obamacare Act).189 Obamacare
followed

184
Economists focus on these four main types of market failure. See Ben Sihanya (2016; 2020) Intellectual Property and
Innovation in Kenya and Africa: Transferring Technology for Sustainable Development, Sihanya Mentoring & Prof Ben
Sihanya Advocates, Nairobi & Siaya, especially Chapter 2 “Conceptualisation and political economy of intellectual
property and technology transfer law in Kenya and Africa,” op. cit.
185
The public goods problem has two components. First, the idea that public goods are largely non rival (nons). Second,
that public goods are largely non excludible. See Ben Sihanya (2016; 2020) Intellectual Property and Innovation in
Kenya and Africa: Transferring Technology for Sustainable Development, Innovative Lawyering, Sihanya Mentoring &
Sihanya Advocates, Nairobi & Siaya, especially Chapter 2 on “Conceptualisation and political economy of intellectual
property and technology transfer law in Kenya and Africa,” 43-81.
186
Thus, although Japan is in the geographical (East) and in Asia, and Australia is in the South, they are often regarded
as “Western or Northern.”
187
Cf. Ronald H. Coase (1988) The Firm, the Market, and the Law, University of Chicago Press. 188 Some of these
parties recognize that there are significant socio-economic and political disparities as well as marginalization and that
the constitution envisaged a facilitative, engaged and responsive state or government; not just an interventionist, a
night-watchman. The latter is how Thatcher’s administration or government was interpreted. 189 The Act was challenged
by some republicans with the Supreme Court ruling is constitutional in a 5-4 decision. See Barack Obama (2015)
“United States Health Care reform: Progress to date and next steps,” Vol. 316, No. 5, Journal of the American Medical
Association, at http://jama.jamanetwork.com/article.aspx?articleid=2533698 (accessed 25/9/2016). Chief Justice John
Roberts, a George W. Bush nominee and Republican or conservative leaning was one of 42
and was succeeded by supportive and unsupportive work from President Teddy Roosevelt and Bill
Clinton, on the one hand, and President Donald Trump, on the other, respectively. President Joe
Biden (2020-) has followed most of the Obama economic policies….190

1.11.2 Political organisation under the Neo-liberal or Neo-conservative Constitution, State

or Government in Kenya and Africa
Political organisation under the neo-liberal or neo-conservative constitution, state or government is
also based on competition among the political actors. There is freedom of conscience, opinion,
expression, association, assembly and choice generally. The free market of ideas. Individuals and
parties compete for power. They are free to belong to, or vote for, or lead (other) individuals in, or
form political parties.
Political liberties are now guaranteed by Art 38. Articles 33, 34 and 35 of the Constitution of
Kenya 2010 guarantee freedom of expression, freedom of the media and access to information,
respectively. Article 37 nullifies previous public order or law and order doctrines and breaks new
ground and provides that

“Every person has the right, peaceably and unarmed, to assemble, to demonstrate, to picket, and
to present petitions to public authorities.”191

The neo-liberal constitution, state and government tends to be a dual – rather than a multi-party
system. Although there are many parties, only Labour and the Conservative Party have been the
constitutionally and politically significant for a reasonable duration and in terms of presence in
Parliament and impact in British constitutional democracy.192

The Liberal Democratic Party (LDP or Lib Dems) has been part of the third-party politics and
became a significant player in the 2010 British elections. They secured enough seats to the extent
that whichever of the two parties they formed a coalition with, would form the Government. They
supported the Conservatives.

American constitutional democracy has also been characterized by dual party politics, with the
occasional independent presidential candidate. These are Republican Party (Grand Old Party
GOP)) and Democratic Party (DP). Importantly, some of the key independent presidential
candidates include Ross Perot in 1992 and Ralph Nader in the 2000 elections.193

1.11.3 Neo-Marxist, Socialist or Socialist-oriented state and the Kenyan and African
experience
We use the three-pronged typology of economic organization and political organization in
discussing the socialist-oriented state and government. The third-prong focuses on cultural

the 5.
190
……
191
… articles….. theses….on this…..
192
The 2015 British elections gave the results as published in detail in “UK General elections results in full,” Guardian,
at www.theguardian.com/politics/ng-interactive/2015/may/07/live-uk-election-results-in-full (accessed 23/5/2016). 193
Arthur M. Schlesinger (1973, 2004) The Imperial Presidency, Houghton Mifflin Harcourt, New York.43
organization, especially cultural politics is work in progress. Neo-Marxists political scientists,
political sociologists, political anthropologists and constitutional or legal scholars usually favour a
broad definition of the state. This draws attention to the role of coercion-wielding organizations
who exercise clear priority in decision-making and claim paramountcy in the application of naked
or brute force to social problems within territorial boundaries.194

The Marxist state is largely a by-product of conflict in society. The state arises to resolve some of
these.195 The state is apparently impartial but in actual fact the state is biased because of its class
structure or content.
 Prof Eugene Kamenka renders the definition of the Marxist state as follows:

“The political power of society separated from the rest of society and controlled by the ruling
class of that society in its own interest. The complete obstruction of the state from society is the
work of the bourgeoisie. The claim of the state bureaucracy to be a universal class serving the
public interest and not sectional interests is false.196 Marx does not emphasize the independent
power of the state, although his concept of the Asiatic mode of production concedes that such
independent power in certain conditions is possible. His analysis of the regime of Napoleon III
suggests that a stalemate in the class struggle made it possible for an adventurer to capture and
use the state.”197
The neo-Marxist state is the manager or implementer of the development plan. Contrary to the
position held by critics of neo-Marxism (and vulgar or unreconstructed Marxists),198 some
evidence and scholarship suggest that even in the neo-Marxist state, the state is not necessarily a
committee of the ruling class and may in fact be relatively autonomous from the dominant
class.199

Indeed, in Kenya and Nigeria, the tribal component is much stronger that class in state and

194
Iain McLean & Alistair McMillan (2009) Oxford Concise Dictionary of Politics, Oxford University Press, New
York, (3rd ed) at 507. Quote in text Karl Marx (1851-1852) The Eighteenth Brumaire of Louis Bonaparte, New York:
International Pub. Co, 1898, excerpted in Kamenka, at 138; Karl Marx and Friedrich Engels (1848) The Manifesto of
the Communist, excerpted in Kamenka, ibid, at 203-86... For a more nuanced and contextualized conceptualization of
the neo-Marxist state, see Philip Corrigan and Derek Sayer (1981) “How the law rules: Variations on some themes in
Karl Marx,” Law, State and Society, Routledge, 21-53; Issa Shivji (1995) “The rule of law and Ujamaa in the
ideological formation of Tanzania,” at http://hdl.handle.net/20.500.11810/2052; Yash Ghai (1986) “The Rule of law,
Legitimacy and Governance,” 14 International Journal of the Sociology of Law, 179....[ to integrate these in text] 195 Cf.
the Thomas Hobbesian and the John Lockean analysis on the movement from the state of nature to civil society and the
problematic notion of social contract. Hobbesian and Lockean theories are summarized and discussed in Michael
Freeman (2001) Lloyd’s Introduction to Jurisprudence, Sweet & Maxwell, London.
196
Eugene Kamenka (ed) (1983) The Portable Karl Marx, Penguin, New York.
197
Kamenka, ibid, at 138, other quotes from Karl Marx, Kamenka….
198
Some of these always uncritically bundle Marx with Engels and or Lenin. They also fail to appreciate the dynamism
and adaptability of the (neo) Marxist doctrine. Cf. nuanced discussion in Phillip Corrigan and Derek Sayer (1981) “How
the law rules: Variations on some themes in Karl Marx,” in B. Fryer. A. Hunt, D. McBarnet and B. Moorhouse (eds.)
ibid, 21-53. University of Warwick; Yash Ghai (1986) “The rule of law, legitimacy, and governance,” Academic Press
Ltd; Issa Shivji (1991) “Ujamaa in the ideological formation of Tanzania,” Vol. 4, Social and Legal Studies, Thousand
Oaks, London, 147-174, op. cit….
199
More than 50% of the world’s population was ruled in the name of Karl Marx at the fall of the Berlin Wall(1989).
But most regimes distorted neo-Marxism… Kamenka, ibid, at 138. See Frederick Taylor (2014) “The Berlin Wall: A
Secret History,” Vol. 57, Issue 2, History Today, at http://www.historytoday.com/frederick-taylor/berlin-wall-secret
history(accessed6/9/2016).

44
governmental exclusion, repression and exploitation.200

1.11.4 Political organisation under the Neo-Marxist or Socialist (inspired) Constitutions,

State, or Government
The ideology and political organisation under socialist-oriented constitutions were largely
rhetorical or hortatory on freedom of conscience, expression, association and assembly. In
practice, there were structural and normative constraints including ideological indoctrination.
Political party organization in a neo-Marxist or socialist state by the time the Berlin Wall
collapsed in 1989 was largely monopolistic, or monolithic. These include China, Russia (the
former Union of Soviet Social Republic (USSR) or Soviet Union, Cuba, Tanzania, Mozambique,
and Angola. Individuals had no choice but to subscribe or be bound by the policies of the
Communist Party, the assumed vanguard of the revolution.201

Leadership of the party, and access to state power or resources was through the party, and largely
by way of selection or appointment by the party leadership. There has been no fundamental change
in China or Russia, where only limited local leadership is open to party competition while national
leadership is controlled by one party: the Communist Party.202

Remarkably, at least 50% of the World’s population lived in states or were led by governments that
claimed to be socialist.203 [repeated? edit; above and here]…

200
Thus, while classes in the dialectical neo-Marxist sense are still in formation, tribalism is actually fostering that class
formation through state appointments, contracting or consultancies, tenderprenuership, primitive (capital) accumulation,
and class consciousness. Cf. Bruce Berman (1990) Control and Crisis in Colonial Kenya: The Dialectic of Domination,”
Eastern African Studies Series, Ohio. University Press, Athens, Ohio: John Lonsdale (1998) “The moral economy of
Mau Mau: Wealth, poverty and civic virtue in Kikuyu political thought,” in Berman and Lonsdale (1998) Unhappy
Valley: Conflict in Kenya and Africa, University of Michigan; ES Atieno Odhiambo (2002) “Hegemonic enterprises and
instrumentalities of survival: Ethnicity and Democracy in Kenya.”; Yash Ghai (2016) “The promise of democracy and
the reality of politics,” Star, Nairobi, May 16, 2015, at http://www.the-star.co.ke/news/2016/01/09/the-promise-of
democracy-and-the-reality-of-politics_c1272290(accessed 19/5/2016); Ngozi Okonjo-Iweala (2012) Reforming the
Unreformable: Lessons from Nigeria, The MIT Press, Cambridge, Massachusetts
201
…..
202
The Chinese Communist Party influenced some of the policies, strategies and tactics of some African political parties
like President Kenyatta’s and Ruto’s The National Party (TNA), United Republican Party (URP) and Jubilee Party. The
Jubilee Party stated that it planned to affiliate to the Communist Party, a practice common in other African dictatorial
and tribal kleptocracies. See Justus Wanga (2016) “Jubilee looks to the Communist Party for lessons,” Daily Nation,
Nairobi, 18/9/2016, at http://www.nation.co.ke/news/politics/Jubilee-looks-to-the-Communist-Party-for-lessons/1064-
3385490-yy2x8x/(accessed 25/9/2016)…. Peter Mwangi Kagwanja wrote numerous newspaper articles referring to
China as a model on many fronts…
203
Eugene Kamenka (ed) (1983) The Portable Karl Marx, Penguin, New York. This analysis of agency, institutions and
social structures relates closely to the following theories…. Karl Marx’s, Max Weber’s work on class struggle,
domination, and social struggle; theory of legitimacy or legitimate domination or authority as well as Hans Kelsen’s
pure theory of law, the Grund norm, validity, and revolutionary legality. These inform my reconceptualization through
constitutional sociology, political economy and cultural politics…. Bruce Berman and John Lonsdale have
problematized agency and structure or social determinism in their two-volume study. See Bruce Berman and John
Lonsdale (2001) Unhappy Valley: Conflict in Kenya and Africa, Vol. 1 & 2, University of Michigan. For a very close
study of agency and
structure (and the principle-agent problem?) in Kenya, See John Lonsdale (1998) “The moral economy of Mau Mau:
Wealth, poverty and civic virtue in Kikuyu political thought,” in Berman and Lonsdale (1998) Unhappy Valley: Conflict
in Kenya and Africa, op. cit.

45
1.11.5 Economic Organisation under the Socialist Constitution, State or Government The
Russia (Soviet Union), China, Cuba, Tanzania, Mozambique and Angola were historically
regarded as the leading socialist or communist constitutions, states or governments. But there were
distinctions.
…..

1.12 The Developing Country State and the Kenyan and African Experience Developing
country constitutions have largely claimed to pursue the principles of the liberal and neo-Marxist
(or socialist) state or government.204 States which are neo-or post-colonial like Kenya embody or
pursue some liberal democratic and market-oriented policies associated with Britain, the US,
Germany and Japan.205

The neo-Marxist also emphasize the role of the state in the economy, on the other hand. In many
situations, therefore the developing country state is a mixed economy pursuing liberal democratic
and Marxist206 constitutional principles.

The search or quest for a new constitutional dispensation in Africa and particularly in Kenya seeks
to rationalize and secure equity regarding the role of the state in the economy and particularly to
address the problems of primitive accumulation, oppression and ethnic exclusion by state or
political elite.

Moreover, the quest for constitutional democracy also seeks to end or reduce authoritarianism and
secure liberties through the rule of law, due process, human rights, social justice and participation.
Briefly, the search for a new constitutional dispensation in Kenya has been the quest for economic,
political and social egalitarianism equity and efficiency.

1.12.1 Economic organisation under the developing country constitution, state or

government: Kenya, Nigeria and South Africa
The (African) developing countries focused on in this study have had a chequered history and
development trajectory in terms of economic organisation.207 Even within the East African
Community of Kenya, Uganda and Tanzania (EAC 1),208 the experiences were varied.

204
Liberal v. socialist as categories in the post Cold War period…
205
Cf. the clause in many African constitutions, including Kenya’s section 70 of the 1969 Constitution. See Ben Sihanya
(2013) “Public participation and public interest lawyering under the Kenyan Constitution: theory, process and reforms,”
Vol. 9 (1), Law Society of Kenya Journal, 1-32.
206
In the sense of populist.
207
Another challenge regarding the generic or Ghai typology is that China may be placed under (erstwhile) neo- Marxist
and developing country, and even (economically) liberal constitution, state or government at the same time. 208 There has
been EAC 1 and EAC 2. EAC 1 was established in 1967 and consisted of Kenya, Uganda and Tanzania. EAC 2 was
established in 1999 and consists of Kenya, Uganda, Tanzania, Rwanda and Burundi. Is EAC 3 in the offing? To include
South Sudan and the Democratic Republic of Congo (DRC)(pending)? The BBI 2020 Report and BBI Constitution of
Kenya (Amendment) Bill, 2020, proposed to introduce an amendment in the form of Article 10A: “(1) This
Constitution embraces the goals of African unity and political confederation of the eastern Africa region as integral
towards attainment of sustainable development, prosperity for all and stability (2) the state shall take legislative, policy
and other measures to give effect to this Article.”46
Kenya started off at independence in 1963 as an aspiring liberal economy oriented to the West, and
especially the British economic and state, rather than the US laissez- faire economy.209 This was in
spite of President Jomo Kenyatta’s rhetoric that Kenya was non-aligned as part of the
Non-Aligned Movement (NAM) led by his friend Joseph Tito of (former) Yugoslavia. 210

Ideological, political and tribal or personality clashes between the group led by Kenyatta I and
Vice President Jaramogi Oginga Odinga led to the formulation by Kenyatta I211 of Sessional Paper
No. 1 of 1965 on African Socialism and its Application to Planning in Kenya. This policy paper
established a mixed economy in at least three (3) senses.

First, mixed in terms of Government and private sector participation in the political economy.
Second, mixed in terms of Government control and or management of the “commanding heights”
of the economy through parastatals and private sector participation. Third, mixed in the sense of
agriculture, industry, commerce and services. But there were significant clauses that focused
attention on “high potential areas” and excluded “cultures” that were not “commendable’ to, or
“supportive” of development.212

Unfortunately, the Government focused on these preferential and exclusionary policy statements
rather than progressive policy statements. The progressive include prioritizing policy intervention
on health (ugonjwa), poverty (umaskini) ignorance or illiteracy (ujinga) and related policies; and
mutual social responsibility….213

1.12.2 Political Organisation under the Developing Country Constitution, State and
Government: Kenya, Nigeria and South Africa in Kenya and Africa
Kenya, Uganda, Tanzania, Nigeria and South Africa have gone through at least three phases in
political organisation since Ghana became independent in 1957, Nigeria in 1960 and Kenya in
1963. This relates mainly to freedom of (political or commercial) expression, freedom of the
media, and freedom to join, contest in, lead and form a political party.

The first phase was the period of de jure and de facto multi-partyism, even though it was largely de

209
Colin Leys (1975) Underdevelopment in Kenya, the Political Economy of Neo-Colonialism, 1964-1971, Heinemann
Educational Books…
210
Cf. Group of 77 states that belonged to the Non-Aligned Movement (NAM) which later became 111. They were led
by President Tito of Yugoslavia and President (Mwalimu) Julius Kambarage Nyerere of Tanzania. Cf.
Mannaraswamighala Sreeranga Rajan (1990) Non-alignment and Non-aligned Movement, Vikas Publishing House, New
Delhi, India.
211
Actually, this was led by Mwai Kibaki and John Michuki.
212
The Kenyan territorial nationalism or nationalist coalition that guided the independence structure was being
dismantled by Kenyatta’s “ethno-nationalist” state. See E.S. Atieno-Odhiambo (2002) “Hegemonic enterprises and
instrumentalities of survival: Ethnicity and Democracy in Kenya,” at 61, African Studies Review, 223- 249; ES Atieno
Odhiambo (2002) “Hegemonic enterprises and instrumentalities of survival: Ethnicity and democracy in Kenya,” in
Bruce Berman, Dickson Eyoh & Will Kvmlicka. Ethnicity and Democracy in Africa, James Currey, Oxford, 167- 182.
Peter Anyang’ Nyong’o (1989) “State and society in Kenya: The disintegration of the nationalist coalitions and rise of
presidential authoritarianism 1963-78,” African Affairs….; Githu Muigai (2004) “Jomo Kenyatta & the rise of the ethno
nationalist state in Kenya,” in Bruce Berman, Dickson Eyoh & Will Kymlicka (eds), Ethnicity and Democracy in Africa,
James Currey, Oxford & Ohio UP, Athens, 200-217.
213
….

47
facto dual partyism. In Kenya, the Kenya African National Union (KANU) and Kenya African
Democratic Union (KADU) were predominant.
In Nigeria it was three (3) parties led by Dr Nnamdi Azikiwe (Nigeria People’s Party (NPP)) and
by Chief Obafemi Awolowo (Action Group) and Sir Tafawa Balewa (Northern People’s Congress
(NPC).214

The second phase was marked by multiparty de jure and single party de facto. The pioneers were
Dr Kwame Nkrumah’s Convention People’s Party (CPP) in Ghana, Julius Nyerere’s Tanganyika
African National Union (TANU) and Jomo Kenyatta’s Kenya African National Union (KANU).
Yoweri Museveni introduced a curious and personalized or patrimonial model in the 1980s: the
non-party state. The CPP was a model for many parties in Kenya and Africa. 215

The third phase was the re-introduction of multi-partyism – de jure and de facto in the early 1990s.

These phases were marked by appropriate changes in the text, structure and or practice of the
Constitution in Kenya, Uganda, Tanzania, Nigeria and South Africa. The reversal of the gains is
the fourth phase, with serious implications for constitutional democracy in the Kenyan and African
nation state.216 The reversal has been facilitated by the fact that even though constitutional text
changed especially on the question of party formation or profile, structure, practice or culture did
not change much.217

1.13 Nation in Kenya and Africa

A nation refers to the population sharing a language, tribe or ethnicity and common culture, with a
strong historical continuity.218 This manifests itself in most members in a sentiment of collective,
communal identity.219 Nation was largely a term in cultural studies, anthropology, sociology, and
political science. The emphasis is on linguistic, tribal or ethnic, cultural or political group or
community.

Scholars argue that most ethnic groups are real and historical, constructed or imagined, or
invented. They are a product of a combination of these. Tribal or ethnic identity was mainly done
by politicians or the political elite, missionaries,220 and academics, who emphasized common
origin, current challenges and future destiny.221

214
These parties were partly dominated by the relevant ethnic groups: Igbo, Yoruba, and Hausa Fulani, respectively. See
Chinua Achebe (2012) There was a Country: A Personal History of Biafra, Memoir, Penguin, London, United
Kingdom; Chinua Achebe (1984) The Trouble with Nigeria, Heinemann, London, United Kingdom.
215
….
216
See Ben Sihanya (2016) “Constitutional change of Government in Kenya: Constraints and Opportunities,” The
Advocate magazine, the Law Society of Kenya, 52-53.
217
….
218
People or population are the core variables in definitions of state and constitution: the state, politics, governance or
the law and constitution are primarily about people; human beings. They are the main subject (not object). 219 Iain
McLean & Alistair McMillan (2009) Oxford Concise Dictionary of Politics, Oxford University Press, New York, (3rd
Ed), at 360.
220
E.g. Bible translation – one standardized Bible per tribe.....Luo Bible, Kikuyu Bible, Kalenjin Bible, Luhya Bible,
Kisii Bible, Miji Kenda….? etc.
221
See Benedict Anderson (1993) Imagined Communities: Reflections on the Origin and Spread of Nationalism, Verso
48
Consider the Kikuyu, Luo, Luhya, Kalenjin, Kamba, Kisii, Meru, MijiKenda, Maasai among others.
They are real, constructed and imagined. Some have been imagined or constructed through myths
and legends or fiction.

First, the Kikuyu and Kikuyu politicians are a reality and had (mis)ruled Kenya for 35 (15+11+9)
years between 1963 and 2021 (58 years) through 3 presidents. The myth of Kikuyu creation has
been presented as history. That Murungu or Ngai created Gikuyu na (and) Mumbi and placed them
in Mt Kirinyaga or Mukurwe wa Nyagathanga in Murang’a as ancestral home.222

That Gikuyu na Mumbi then had 9 (perfect) daughters. Any male? That Mumbi and Gikuyu had
no sons. Myth also has it that Gikuyu and Mumbi had ten (10) daughters, with the tenth daughter
named Wamuyu aka Wanjugu, allegedly not married. 223

Second, the myth of centralized rule or Government. And that the Kikuyu had a centralized
Government with a king, King Kikuyu. And that Wangu wa Makeri was ruler of the entire tribe.
The fact and history is that like Kenyan tribes, the Kikuyu, were acephalous. Remarkably, only the
Wanga were partially cephalous or centalised government.

There is also the myth that female Government was dictatorial and overthrown through phallic
power.224 The fact is that like all Kenyan tribes, Kikuyu migrated into Kikuyuland. Only two (2)
Kenyan tribes are indigenious: Dorobo and Njemps.225

Thus, in Facing Mt Kenya Jomo Kenyatta also formally launched or invented the (m)uthamaki
which aspirant candidate, and President Uhuru Kenyatta operationalized and contextualized
especially from about 2012 and particularly during the 2013 and 2017 elections, and in
administration and governance.

Third, the myth of linguistic, tribal and cultural homogeneity. There were divergence in terms of

Books, New York, London; Benedict Anderson (1983) Imagined Communities, at https://www2.bc.edu/marian
simion/th406/readings/0420anderson.pdf (accessed 20/5/2016). On the construction of the relevant Kenya tribes. See
Godfrey Muriuki (1969) A History of the Kikuyu, 1500-1900, vii, 190, Oxford University Press, Nairobi [1974]
(Kikuyu); Bethwel A. Ogot (2012) Kenyans, who are we?– (Luo); Gideon S. Were John Oligo (Luhya); see also two
books on the Luhya nation….. William R.Ochieng’ (Abagusii); ES Atieno Odhiambo (various ethnic groups); ES
Atieno Odhiambo in Ogot & Ochieng’ “the invention of Kenya; Positive and negative ethnicity….ES Atieno Odhiambo
(2004) “Hegemonic enterprises & instrumentalities of survival: Ethnicity and democracy in Kenya,” in Bruce Berman,
Dickson Eyoh and David William Cohen and Elisha Stephen Atieno Odhiambo (1989) Siaya: The Historical
Anthropology of an African Landscape, African Affairs, Vol. 88, Issue 353; cite Luo customs, traditions and
practices….; Jomo Kenyatta (1961) Facing Mt Kenya: The Tribal life of the Gikuyu, Vol XXXVII, Issue CXLIX,
African Affairs, 1 October 1938; Oginga Odinga (1986) Not Yet Uhuru, East Africa Publisher, Nairobi ...... Paul Mbuya
(1938, 1967) Luo Kitgi gi Timbegi (Luo Customs and Traditions), Kendu Bay, Africa Herald Publishing House;
Kymlicka (eds) Ethnicity & Democracy in Africa, James Currey, Oxford, Ohio University Press, Athens, 167-182….
222
…
223
Louis SB Leakey (1959) First Lessons in Kikuyu, Kenya Literature Bureau, Nairobi.
224
Those myths are in Jomo Kenyatta (1938) Facing Mount Kenya, ….
225
BA Ogot, Kenyans, Who Are We? op. cit., at 159.49
dialect or language, and culture among the Northern and the Southern Kikuyu. Linguistic, tribal
homogeneity have evolved or developed through at least three (3) factors. First, interactions
facilitated by communication through increased and commerce226 via markets, improved
infrastructure …. Second, the work of missionaries who sought to standardize Kikuyu language,
tribal history and culture through the Bible, religious tracts and histories, and related literature.
Third, Kikuyu historians and (public) intellectuals like Jomo Kenyatta, Prof Godfrey Muriuki have
promoted pan-Kikuyu and even pan-Thaguci cultural politics.

Second, the Kalenjin politicians (mis)ruled Kenya for 24 years and had a powerful Deputy
President (DP) for seven (7) years and whose exclusionary and anti-democratic legacy is felt
beyond 2022. The myth of common origin. There is the myth of common origin, and the myth of
common historical challenges. The fact that there are at least 15 Kalenjin (sub) tribes:227 These
cultural or identity politics have been formulated by President Daniel Moi and historians.228

Third, the Luo are descended from different ancestors and migrated through three (3) main clusters
and at difference periods. Joka (people of) Owiny, Joka Jok, and Joka Omolo. In some cases, they
assimilated Bantus through intermarriage.229 Remarkably, while the established centralized
authority in Bunyoro Kitara, pre-colonial Luo organized around clans and thus acephalous….

There was diversity in tribal genealogy, dialect, language and culture especially among the Luo of
Central Nyanza (Siaya, Kisumu), and South Nyanza (Homa Bay, Migori). Homogeneity has
developed through three (3) core factors. First, communication…. Second, missionary work through
the Bible, religious tracts and educational materials…. And through political and intellectual
mobilization by Shadrack Malo, Samwel Ayany, Paul Mbuya, Jaramogi Oginga Odinga, TJ Mboya
and BA Ogot….

Tribal myths like Lwanda Magere have been treated as such: myths and not history.230 This is unlike
Jomo Kenyatta, Ngugi wa Thiong’o and some Kikuyu(ist) historians or historical anthropologists
who treat myths as history.231 Others argue that for instance, the name Luo may have been coined
from Bar-ehl-Ghazal. Also, that the name could have been derived from the ruler of the Cush
Kingdom, King Uluo Atyak.
226
Jomo Kenyatta, Ngugi wa Thiong’o, Godfrey Muriuki, Peter Mwangi Kagwanja, Mutahi Ngunyi etc.
227
……
228
….
229
ES Atieno Odhiambo & David Cohen (1989) Siaya: The Historical Anthropology of an African Landscape, Eastern
Africa Studies.
230
Bethwel A. Ogot (ed) (1976), WR Ochieng (1976) “Transformation of a Bantu Settlement into a no Ruothdom (Chief
dom)”…. Onyango Ogutu and Adrian Roscoe (1974) Keep my Words: Luo Oral Literature, East African Publishing
House…
231
See Chapter 2 of CODRALKA “Constitutional founding of the Kenyan and African state,” in Ben Sihanya
(forthcoming 2021) Constitutional Democracy, Regulatory and Administrative Law in Kenya and Africa, Vol. 1: Theory,
Structure, Method and Systems in Kenya, Sihanya Mentoring & Sihanya Advocates, Nairobi & Siaya. 50
In summary, none of the Kenyan tribes or ethnic groups is “pure.” Moreover, many are in mixed
relationships or are a product of such. But some identify more with the tribe that has greater access
to economic resources and political power. Let us build Kenya; Kenyan nationhood, economically,
politically and socially, and through a responsive legal and constitutional sociology and system.

1.14 “Nation state” in Kenya and Africa

A nation refers to the population within, sharing a common culture, 232 religion?233 language, and
ethnicity with a strong historical continuity. This manifests itself in most members in a sentiment
of collective, communal identity.234 Nation and hence the national question is largely an
anthropological, sociological and political term. It is also used in literary and cultural studies or
cultural politics. It means ethnic, linguistic, cultural or political group or community.

Scholars argue that most ethnic groups are real but are also invented, constructed or imagined.
This was or is mainly done by the political elite and academics, scholars or intellectuals who
emphasize(d) three key ingredients of nationalism: common origin, current challenges and destiny
or aspirations.235

A nation-state is a sovereign entity dominated by a single nation.236 A nation may suggest a

country or a state where there is a high degree of ethnic, linguistic, religious and and cultural
homogeneity. Thus, Somalia was treated as a nation state until 1991 when it collapsed during the
presidency of dictator Siad Barre.237

The term nation and nation state are not coterminous although many use them as if they are
identical. Kenyan politicians, political science and law scholars of Kenya increasingly use the
terms as if they are coterminous with state.

232
Hence the significance of values, principles and policies in the context of constitutional or legal rules.
233
E.g. African traditional religion (ATR), Christianity, Islam, Hindu…
234
Iain McLean & Alistair McMillan (2009) Oxford Concise Dictionary of Politics, Oxford University Press, New York,
(3rd ed), at 360.
235
See Benedict Anderson (1983) Imagined Communities, at https://www2.bc.edu/marian
simion/th406/readings/0420anderson.pdf (accessed 20/5/2016). On the intellectual, cultural and political construction of
the relevant Kenyan ethnic communities, see Godfrey Muriuki (1974) A History of the Kikuyu, 1500-1900, Oxford
University Press, Nairobi; BA Ogot (2009)“A History of the Luo-Speaking People of Eastern Africa,” Anyange Press,
Kisumu; ESAO; Gideon S. Were (1967) A History of the Abaluhyia of Western Kenya: 1500-1930. East African
Publishing House, Nairobi, Kenya; Ben Kipkorir (1973) The Marakwet of Kenya: A Preliminary Study, East Africa
Literature Bureau; William R. Ochieng’ (1974) A Pre-Colonial History of the Gusii of Western Kenya: A.D. 1500-1914,
East African Literature Bureau, Nairobi, Kenya; ES Atieno Odhiambo (various ethnic groups); ES Atieno Odhiambo
(1995) in Ogot & Ochieng’ (ed) Decolonization and independence in Kenya, James Currey Publishers Ltd, United
Kingdom; Ogot & Ochieng (eds) (2000) Kenya: The Making of a Nation: A Hundred Years of Kenya's History, 1895-
1999, Institute of Research and Postgraduate Studies, Maseno University, Kenya.
236
Iain McLean & Alistair McMillan (2009) Oxford Concise Dictionary of Politics, Oxford University Press, New York
(3rd ed), at 360.
237
See Ben Sihanya (2014) “The Government approach to security from a constitutional perspective,” Concept paper
presented to a joint symposium between the University of Nairobi and USIU at the United States International
University-Africa (USIU) on the Government Approach to Security from a Constitutional Perspective, Nairobi on June
20, 2014, on file at Sihanya Advocates, Sihanya Mentoring (SM) & Sihanya Advocates, Nairobi & Siaya,
Kenya.51
Remarkably, nation is now an acceptable reference to the state, self-governing territory or country.
First, the Constitution of Kenya 2010 now uses it interchangeably with state.238 Second, the
concept of nation is increasingly used in politics, literature, sociology, anthropology, and legal
academy to help foster nation building, especially in ethnically divided states like Kenya, Nigeria,
South Africa, Ghana, Uganda. 239 Tanzania is increasingly experiencing ethnic or regional
competition…. Increasingly, and significantly, Kenyan and African constitutions, statutes and
emblems or symbols use the term nation as if they are coterminous with state. For instance, the
Kenyan Constitution refers to nation (taifa), and national values and principles. And Kenya’s
national anthem is scheduled in the Constitution. Speeches and writings by politicians also focus
on Kenya as a nation.240 [to integrate with relevant earlier paragraphs]

1.15 Nationalism241 and nationhood (vis-à-vis statehood and the “national question”242 (cf.
citizenship; ethnicity...tribalism...)
Nationalism has been divided into three (3): territorial (or state-wide) and civic citizenship; ethnic
nationalism;243 and nationalism (as exceptionalism or populism) in international relations,
including diplomatic and consular relations.244

238
See, for instance, the Preamble (indivisible sovereign nation); Art 1 (sovereignty at national and county level);
Articles 4 and 10 (national values, principles and policies); Article 6 (national state organs); Article 7 (national
language); Article 9 (national symbols: national flag, anthem, court of arms, public seal, public (national?) holidays.
See also Kenya’s national Anthem: “Oh God of all creation /Bless this our land and nation/ Justice be our shield and
defender.”
239
ES Atieno Odhiambo (2004) “Ethnic cleansing and civil society in Kenya 1969-1992,” 22:1, Journal of
Contemporary African Studies, 29-42; contemporary ethnic colonialism, aristocracy…Cf. Ben Sihanya (2014) “The
legacy of Kamaliza, the Terminator, or Kenyan liberators confront Pan Thaguci control,” Sihanya Advocates, &
Sihanya Mentoring, Nairobi, Siaya, at
http://innovativelawyering.com/blogs/87-the-legacy-of-kamaliza-the-terminator--or-kenyan-liberators
confront-pan-thaguci-control (accessed November 5, 2020). Cf. Sihanya (due 2021) “The Kenyatta legacy, the Raila
promise and the future of constitutional reform in Kenya,”….
240
BA Ogot (2012)…..
241
Cf. ethnic nationalism; territorial nationalism, both within the (nation) state; vis-a-vis nationalism in international
law and relations (Nazi nationalism; Trump’s, America first (and only) policy, Mobutu’s “authenticity,”...cf. Sankara
on Burkinabe nationalism, Patrice Lumumba on Congolese self determination… This is an important discourse in
constitutional theory and process, identity politics, cultural politics, sociology, and political science. See also Chapter
2 on the Constitutional founding of the Kenyan and African State; See ES Atieno Odhiambo (2004) “Hegemonic
enterprises & instrumentalities of survival: Ethnicity and democracy in Kenya,” in Bruce Berman, Dickson Eyoh and
Will Kymlicka (eds) Ethnicity & Democracy in Africa, James Currey, Oxford, Ohio University Press, Athens 167-182;
Githu Muigai (2004) “Jomo Kenyatta and the rise of the ethno-nationalist state in Kenya,” in Bruce Berman, Will
Kymlicka & Dickson Eyoh (eds) (2004) Ethnicity and Democracy in Africa. James Currey, Oxford, Ohio University
Press, Athens, 200-217, op. cit....
242
Cf. Shivji;…. Congolese Scholar…. in Issa Shivji (ed) State and Constitutionalism: African Debate in
Democracy…in Anyang’ Nyong’o (1987) (ed) Popular Struggles for Democracy in Africa, London: Zed Press. See the
national question and the crisis of instability in Africa; Lenin, Halin. Soyinka, ESAO (….), Marxism and the
(unresolved) national question (in South Africa, Nigeria, Kenya)….
243
See BA Ogot, Kenyans: Who are we? op. cit. ESAO “Hegemonic enterprises,” (infra); John Lonsdale, “The moral
economy of Mau Mau: Wealth, poverty and civic virtue in Kikuyu political thought,”....; Steven Chege, “Ethnic and
civic citizenship in Kenya,” W.R. Ochieng.........
244
E.g. Nazi and Aryan nationalism under Adolf Hitler; US nationalism under George W. Bush, Trump (“America
First,” or “only”? What of his dealings with or allegiance to Putin and Russia e.g. Roger Stone, Michael Cohen cases
and testimony....Trump’s Anti Mexican, anti-African sentiments e.g. “shithole” countries.......52
First, territorial nationalism was probably at its peak in the struggle for independence in Kenya,
Uganda, Tanzania, Nigeria, South Africa, Zimbabwe and Ghana.

Second, positive or moral ethnicity245 versus negative tribalism. Nationalism was described by
Ernest Gellner as follows:

“It is a primarily political principle, which holds that the political and the national unit should be
congruent.”246

It is a project intended to build a nation or nation state out of the diverse ethnic, linguistic and
cultural differences. It may take three (3) major forms: ethnic or cultural nationalism (or positive
ethnicisation or tribalism);247 and, political or politicized ethnicity or nationalism (or negative
tribalism). Third, there are transnational or pan-African approaches to nurture moral
ethnicity….248

In certain contexts, this may promote the virtues of one’s kinship, ethnicity or other sense of
belonging without compromising the national interest or public good. Political ethnicity or
tribalism involves foisting one’s ethnicity above other ethnic identities. It invokes ethnic
discrimination and exclusion. It can be used in an exploitative, dominating, hegemonic,
exclusionary, intimidating or
oppressive manner.249

The decolonization process, or the struggle for independence, the quest for freedom and self
government especially from the 1940s marked a turning point in Kenya African nationalism. 250

245
“Moral ethnicity” has been conceptualized and contextualized by John Lonsdale, ES Atieno Odhiambo, and other
scholars.
246
Iain McLean & Alistair McMillan (2009) Oxford Concise Dictionary of Politics, Oxford University Press, New York
(3rd ed) op. cit., at 357.
247
The Head of State was expected to be the father of the nation. Nyerere, Senghor and Mandela performed this role
relatively well. Jomo Kenyatta, Mobutu Sese Seko, Iddi Amin, Sani Abacha and Jacob Zuma and most of their
successors were largely fathers of their tribes, relatives and friends….
248
Cf. Bethwel A. Ogot’s movement from “Southern Luo” to the “Luo of Eastern Africa” (via his conceptualization of
the “Jii speaking.” Prof Duncan Okoth Okombo told this author and others that “Jii” (or people) was linguistically
problematic as an analytical category. That it meant comparing Luo to “Bantu speaking” in terms of analysis…. 249 E.S.
Atieno Odhiambo (2004) “Hegemonic enterprises & instrumentalities of survival : Ethnicity and democracy in Kenya,”
in Bruce Berman, Dickson Eyoh and Will Kymlicka (eds) Ethnicity & Democracy in Africa, James Currey, Oxford,
Ohio University Press, Athens 167-182, op. cit.; Githu Muigai (2004) “Jomo Kenyatta & the Rise of the Ethno
Nationalist State in Kenya,” in Bruce Berman, Dickson Eyoh and Will Kymlicka (eds) Ethnicity & Democracy in
Africa, James Currey, Oxford, Ohio University Press, Athens, 200-217, op. cit.; Ben Sihanya (2011) “Reconstructing
the Kenyan Constitution and State: Lessons from German, American and African Constitutional Democracy,” Vol. 6
No. 1, Law Society of Kenya Journal, 1-35, revised in CODRALKA 3; There have always been issues about tribal or
ethnic hegemony in appointments, etc. cf. Benard Bii & Denis Lubanga (2014) “Uhuru tours Rift to quell URP protests
over the jobs,” Daily Nation, Nairobi, 29/5/2014, at 1; Otieno Otieno (2021) “Talk of a rotational presidency heats up
Kenya’s political climate,” EastAfrican, Nairobi, January 22, 2021, at https://www.theeastafrican.co.ke/tea/news/east
africa/talk-of-a-rotational-presidency-heats-up-kenya-s-political-climate-3264716 (accessed February 10, 2021). 250
Wunyabari Maloba (1995) “The Formative years: 1945-1955,” in Ochieng & Ogot (1995) Decolonization and
Independence, op. cit.; ESAO…..; Lonsdale; Ngugi wa Thiong;o (1981) Detained: A Writers Prison Diary, Heinemann;
Kinyatti…; Kipkorir…; Peter Mwangi Kagwanja (2012) Kiraitu Murungi: An Odyssey in Kenyan Politics, East African
Educational Publishers,
Nairobi. 53
At independence in 1963, and after, the President or Prime Minister and head of state was also
referred to as the father of the nation in Kenya, Tanzania and other African states. The President
and the Prime Ministers were expected to build the nation. The struggle for the benefits of or fruits
of independence or matunda ya Uhuru have been undermined primarily through negative
ethnicity.251

1.15.1 Another Typology on the People, Sovereignty, Constitution, States, Constitution?....

There is another three-pronged typology on Constitutions and States that will be reviewed in light
of the discourse in this Chapter. These include, first, neo-liberal constitutional democracy. Second,
ethnic constitutional democracy, and third, consociational constitutional democracy.252

First, the neo liberal state or constitution has been discussed in Chapter 1.11 above. Second, the
ethnic constitution or state in Afro-Kenyan constitutional democracy, which we discussed in
Chapter 1.12…. Third, the consociational constitution and state relates to negotiated or mediated
constitutional democracy. That has been a major feature of post-2002 Kenya and Africa, ranging
from the National Rainbow Coalition (NARC) revolution under “Kibaki Tosha,” the Grand
Coalition or nusu mkate (half a loaf) government; and the handshake or rapprochement as well as
the Kenyatta II succession and transition…

…..nexus……..

1.16 Powers of National and subnational Government in Kenya and Africa Consider the f
powers, functions, responsibilities, duties and obligations of the National and County
Governments in Kenya, Ministries, Departments and Agencies (MDAs) as well as the hands of the
organs of Government among others, in the context of the typology of people sovereignty
constitutions, states, and Government and markets....[nexus]….

1.17 Summary of Findings, Conclusions and Recommendations on Sovereignty,

Constitutions, States, and Governments in Kenya and Africa
The central argument in this chapter is that Kenya and Africa have suffered under successive
presidents, rulers and governments that do not observe, and actually reverse constitutional gains
and negate constitutional democracy. Kenyans and Africans need to develop an Afro-Kenyanist
approach and methodology on constitutional, regulatory and administrative law.

The Building Bridges Initiative (BBI) 2019 and 2020 Reports, proposals, litigation and related

251
See Mboya, “We in Kenya should not take it for granted that we are going to have lasting unity without being
prepared to work for it.” Cited in CODRALKA 1 and CODRALKA 2. See also Tom Mboya (1970) The Challenge of
Nationhood: A C o l l e c t i o n o f S p e e c h e s a n d W r i t i n g s , N e w Y o r k , P r a e g e r P u b l i s h e r s , 1 970
, p p . 2 7 8 ; Nyong’o (1989) “State and society in Kenya: The disintegration of the nationalist coalitions and the rise of
presidential authoritarianism, 1963-78,”, Vol. 88, African Affairs, op. cit.; Ben Sihanya and Duncan Okello (2010)
“Mediating Kenya’s post-election crises: The politics and limits of power sharing agreement,” Chapter 3 in
CODRALKA 3.
252
Yash Ghai (2005) A Journey Around Constitutions. Cf. also Colonial Constitutions, independence constitution, post
communist constitutions is the new wave of democratization ….
54
reform proposals provided an opportunity for constitutional, policy, legislative and administrative
reform. The people, scholars, experts, politicians and interested parties, other stakeholders should
drive the agenda of reform and implementation of constitutional democracy in Kenya and Africa.

….Let wisdom flow from the Oracle and back in class through books, articles, online, in the
Oracle’s Shrine and in appropriate fora…..

© Prof Ben Sihanya, JSD (Stanford), Revised 27/2/2013; 26/9/2013; 14/6/2014; 14/10/14;
16/02/2015; 16/06/; 31/08/2015; 10/2/2016; 29/6/2016; 14/4/17; 10/4/2018; 8/2/2019;
28/2/; 18/6/; 3/10/; 3/12/2019; 29/1/2020; 5/10/; 17/10/; 19/10/2020; 3/11; 5/11/2020;
10/2/2021; 20/2/; 4/6/; 8/6/; 25/6/; 18/10/2021

email: [email protected]; [email protected];

[email protected](use both) url: www.innovativelawyering.com;
www.sihanyaprofadvs.co.ke
55