Chapter 1: Conceptualising People, Sovereignty, & Kenya PDF

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...

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”3 and 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 democratic8 and 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) 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 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 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 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 Africa95 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 nd 96 See Vicki Jackson & Mark Tushnet (2006) Comparative Constitutional Law, Foundation Press, New York (2 ed). 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 H