WHAT IS A CONSTITUTION

• The term constitution can be construed narrowly

and broadly. From a limited perspective, Wade
and Bradley define a constitution as;
– a document having special legal sanctity which
set outs the framework and the principal
functions of the organs of government within
the state and declares the principles by which
those organs operate.
• This definition presupposes a written document
known as a constitution. Accordingly, Kenya,
South Africa, United States of America, just to
mention are countries that have a document
known as a constitution.
• Kenya promulgated its current
constitution on 27th August 2010 which
document fits the definition above; it has
a legal sanctity that cannot be
questioned, it creates Kenya as State, its
organs and institutions and prescribes
their values and principles.
• By dint of this definition, one could easily
argue that countries such as the United
Kingdom and Northern Ireland do not
have a constitution.
• As Wade and Bradley observe, it is because in
UK, there is no single document from which is
derived the authority of the main organs of
government, no single document that lays
down the relationship of the main organs of
government with one another or with the
people.
• This then justifies the need to define and
understand a constitution from the broader
perspective. Bolingbroke broadly defines a
constitution as follows;
 – By constitution, we mean, whenever we speak
with propriety and exactness, that assemblage of
laws, institutions and customs, derived from
certain fixed principles of reason that compose
the general system, according to which the
community has agreed to be governed
• Accordingly, the UK and Northern Ireland
indeed do have constitutions. Their
constitution is found not within a single
document but from key Acts of parliament,
judicial decisions, constitutional conventions,
accepted rules of behavior, unwritten maxims
of the constitution amongst other sources.
• The basic principle being that people have agreed
to be governed in accordance to the said
principles which also, diverse in their nature,
create institutions of governance.
• In the case of Rev Dr Timothy Njoya and 6 other
v the Attorney General and 3 others, Ringera J as
he was then, described the constitution in the
following words,
– It is a living instrument with a soul and consciousness;
it embodies certain fundamental values and principles
and must be construed broadly, liberally and
purposely or teleologically to give effect to those
values and principles
• Similarly, in the case of Crispus Karanja Njogu
v Attorney General, the court that this to say
about the constitution,
– The court must appreciate throughout the
constitution, of necessity, has principles and
values embodied in it; that a constitution is a
living piece of legislation. It is a living document.
• Hilaire Barnett also describes a constitution
broadly as, ‘a living, dynamic organism which
at any point in time will reflect the moral and
political values of the people it governs’.
• Accordingly, whether written or not, it is the
set of values and principles that people ascribe
to and accept to be governed by that define a
constitution.
• While we shall look at these values and
principles latter on in this class, it is worth
noting that the said values and principles are
what the courts strive to give effect to while
interpreting and enforcing the constitution and
indeed every other person and organ of the
state as we shall see
 FUNCTIONS OF A CONSTITUTION
• From the definitions, it is obvious discernable that a
basic function of a constitution is to constitute and
define a State and the powers of organ of the state.
• Form the face value, it also regulates relationships
between the organs of state it creates and the people
as well as the outside world.
• It is worth remembering all through that the character
of the functions of a constitution is not only descriptive
but also normative. Where it plays a normative
function, then by and large it establishes a conduct
which is considered correct or reasonable and is
expected to be adhered to.
• This notwithstanding, a constitution can be said to
perform various functions;
 1. Constitutive or creative functions
• It constitutes or creates institutions and a society into a
legal entity referred to as a State. It constitutes Kenya
as a Republic and declares its territory, it establishes
organs of government that include; the executive,
legislature, the judiciary and devolved governments.
• By constituting, the constitution also creates ‘a people’
who live in the State. It is the people who occupy the
institutions so created, execute the functions assigned
to those institutions according to the values and
principles enshrined in the constitution thereby
contributing the welfare of the Kenyan State.
 Concept of a people
• Constitutions under their constitutive and creative
functions constitute people into a legal society
known as a State.
• It is through a constitution that people or groups of
people come together, agree and arrange to live
together in a society compromised of a legal society
called a state.
• Walter Murphy, in reference to the USA
Constitution, argues that A constitution is in John
Madison’s terms a constitutive document. It
constitutes or re-constitutes the people of USA as a
political community.
• Hanna Learner makes reference to the constitutive
function of constitutions as thus, ‘ a constitution
represents a mechanism of self binding but also serves
as an expression of self determination. Constitutions in
this sense is a technique of durable, viable and civilized
society. The relationship between constitution and
identity of people was conceived as fundamental to the
understanding of the state as far back as to Aristotle
who says, ‘ its obvious that in determining the identity
of the city we must look into the constitution. He is
also quoted that if the city is a form of association and
this association of a citizen is a constitution, it would
seem to follow that when a constitution undergoes a
change and becomes different constitution, the city
would seize to become the same city.
• Ulrich Preus in his article, Constitutional, revolution,
link between constitutionalism & progress, says
that the function of a constitution goes beyond the
limiting function to constituting people into a
politic. He observes that although the limiting
function of constitutions is of utmost importance, it
is obvious no body can found a polity on principle of
government without having constituted and
legitimized the power of a polity hence the order is
reserved to found or restructure a polity requires
the creation of its very power which one might call
the creative and constitutive forces of a
constitution.
• The importance of a constitution lies not in its
express of political identity but in its ability to
transform a people into a civic body.
• The preamble of the USA Constitution reveals that
the then USA states intended to and did constitute
themselves into a more perfect union known as
USA.
• The South African Constitution shows a people that
were aware of the injustices committed against
them and their resolve to heal the divisions of the
past by building a state united in their diversity,
build a society based on democratic values, social
justice and fundamental human rights
• The Indian Constitution talks in its preamble of a
people who resolved to constitute India into a
sovereign socialist secular democratic republic.
• From the fore examples, the constitutions first
constitute a people into a polity that gives itself the
constitution. Thus the constitution legitimizes the
people into a polity that is legally sufficient to adopt
and give unto themselves the constitution.
 2. Organizational and Power management
function
• Through the constitution, people are able to determine
how they would like government to be organized and
how they would like to define, distribute and constrain
use of state power.
• For instance, the Kenyan government is organized into
two levels of government; national and 47 county
governments, each level of government has an
executive and a legislature, there are independent
offices that perform checks and balances on each
other, i.e independent commissions and the judiciary.
• The prosecutorial authorities as well as the
investigating authorities are independent while the
executive is detached from the legislature in order to
ensure separation of powers.
 3. Legitimating and value formation
function
• The constitution is the source of authority for any
person wishing to execute any function or authority.
Article 1 declares that all sovereign power belongs to
the Kenyan people and is exercised in accordance with
the constitution.
• Accordingly, any power exercised contrary to the
constitution is not legitimate. When declaring itself as
the supreme law in Article 2, the constitution also
binds all persons and all state organs. Further Article
20(1), the Bill of rights applies to all law and binds all
State organs and all persons.
• Subsequently, all Kenyans and state officers must act in
accordance with the constitution while relating with
each other either vertically or horizontally.
• Accordingly one of the main purposes of a constitution is to
put in place a set of arrangements that enjoys popular
legitimacy, which enables the people of a given country to be
governed in a way that they regard as acceptable, and which
thereby renders legitimate the exercise of power by the
institutions of government. There are a number of practical
ways in which a constitution may be imbued with this sort of
legitimacy.
• The most obvious and transparent way is to have a genuinely
inclusive national debate about what the constitution should
say and then to hold a referendum on the terms of the new
constitution.
• A process of this nature was followed in South Africa in the
1990s as it emerged from the shadow of apartheid. A similar
exercise was done in Kenya in 2005 during which the
proposed wako draft constitution was rejected after which, in
2010, a public dialogue as to the nature and contents of the
constitution was done and approved through a referendum.
 4. Accountability function
• A key purpose of a constitution is to ensure that
those entrusted with power are required to
exercise it responsibly and called to account when
they do not.
• It is correctly observed that ‘power tends to
corrupt, and absolute power corrupts absolutely.
People with executive powers may chose to do as
they please, they may exercise the power prudently
and selflessly or due to incompetency, bad advice
or corrupt values, they may make imprudent self
serving decisions.
• It is for this reason that a constitution puts in place
mechanisms of accountability of state officer by not
only limiting their scope of powers but requiring
them to adhere to certain levels of conduct and
procedures.
• These mechanisms embodied in the constitution
enable the citizenry to identify those responsible
for acting contrary to the constitution, gives room
for them to explain themselves and their actions,
requires them to make things right where possible,
enables both the citizenry and the state officers to
learn lessons for the future and ultimately they
provide redress in the event of unlawful as opposed
to merely unwise government action.
 5. Guarantor of human rights
• Constitutions while constituting , creating and
distributing powers among various institutions and
organs, it also limits state power in order to secure
and protect fundamental rights and freedoms of
individuals and groups.
• This is done through the Bill of Rights. Most
constitutions of the world indeed do have Bill of
rights embodied within them.
• The Kenyan Bill of rights is secured in its
application by the fact that it applies to all law,
binds all state organs and all persons.
• However, modern constitutions through the Bill of
rights also seek to secure economic and social
rights and environmental rights.
• The Kenyan Constitution borrowed a leaf from
the Constitution of South Africa and
incorporated economic and social rights. It
went further to protect group rights of the
youth (Article 55), older members of society
(Article 57) and persons with disability (Article
54).
• This novelty is further expanded by the
protection of consumer rights (Article 46 (1)).
Ordinarily, these rights law are hardly the
domains of constitutional law.
 6. Pillars of Democracy
• Curie and Waal correctly opine that constitutions
are vital for democracy. Ambani and Mbondenyi
also observe that good constitutions generally
anchor certain unanimous tenets that have
garnered recognition as hallmarks of a democratic
dispensation.
• These tenets include, a free press, multi-party
politics, regular free and fair elections, freedom of
expressions among others. Democracy is also
enhanced by other ideals of constitutions such as
that of rule of law; separation of power; limiting
state power among others.
• The Kenyan Constitution embodies these
ideals and is thus a pillar to democracy if it is
well implemented.
• Article 2 provides for exercise of sovereign
power through peoples representatives that
are democratically elected.
• Article 4 establishes the republic of Kenya as a
multi-party democratic state that is founded
on national values and principles of
governance referred in Article 10.
• Devolution is meant to promote democratic
and accountable exercise of power
 7. Pillar of good governance
• Good governance can only flourish if it is founded
on constitutions. Good governance is ascertainable
by the attributes such as, participation,
accountability, transparent, responsive, effective
and efficient, equitable and inclusive and
sustainable development.
• These attributes are protected under Article 10 of
our constitution while they also run through the
entire of the constitution.
• Parliament is required under Article 118 to conduct
its business in public and to facilitate public
participation and involvement in its legislative and
other business.
• Independent commission are required to
submit yearly reports to the President as well
as parliament for public scrutiny through the
representatives of the people.
• Their reports are to be published and
publicized by dint of Article 254
CLASS 2 NOTES

ZACKY
JUNE
 TYPES OF CONSTITUTIONS
• Classifying constitutions has been argued may be
an arbitrary and exercise in futility. This is
because of a number of reasons, first, ‘it is
because as Loewenstern argues, constitutions at
the very basic, are a reflection of the main social,
economic and political concerns of the particular
countries’ and a compromise between the socio-
economic, political and cultural forces that are
responsible for their creation.
• Secondly, as Mbondenyi and Ambani observe,
constitutions do not offer everything about the
system of government it seeks to constitute.
04/07/24 27
• There exist other important rules in a legal system
without which it would be difficult to classify or
describe the system of government in question.
This observation is supported by that of Fittingly
who observes that;
– A constitution itself is only a part of the rules that make
up a system of government and any category into which
a constitution may be placed may be rendered unreal or
inadequate by the study of the actual working of the
system of government
• Despite this difficulty, constitutions do share some
attributes which can be used to classify them. These
classifications are;
04/07/24 28
 Written and unwritten constitutions
• All countries of the world with the exception
of Israel, New Zealand and Britain have
written constitutions.
• This method of classifying constitutions has
been faulted by Ojwang who has argued that
this method is ‘stilted in so far as it places
virtually all the countries of the world on one
side of the scales and only three countries on
the other side’

04/07/24 29
• Despite the fact that no single document can
contain the totality of laws of a government,
written constitutions represent the
constitutional law of States.

• With respect to unwritten constitutions, in the

three jurisdictions where these are found,
there exists no single document that accounts
for substantial constitutional law/order.

04/07/24 30
• Unwritten constitutions are to be found in
different scattered legislative enactments that
are often supplemented by a significant body
of conventions and usages.
• These supplementary legislations have to be
within the ambits prescribed in the
constitution and must be passed in the
prescribed manner

04/07/24 31
 Rigid and flexible Constitutions
• Dicey defined a flexible constitution as “one
under which every law of every description
can legally be changed with the same ease
and in the same manner by one and the same
body.”
• He also defined rigid constitutions as “ those
under which certain laws generally known as
constitutional or fundamentals laws cannot be
changed in same manner as ordinary laws.

04/07/24 32
• A rigid constitution is one which requires a special
method of amendment of any of its provisions while
flexible constitutions are those with flexible procedures
of amendments as compared to rigid constitutions.
• In other words, the conditions required to amend
flexible constitutions are much less than those in rigid
constitutions. Most American and European
Constitutions are rigid. The method of amending rigid
constitutions varies: it may be a legislature sitting in a
special way as in France or with a prescribed majority
or prescribed quorum (as in Belgium), consultation of a
special constituent body as in the United States),
consultations of component members of a composite
state (as in United States and Swiss Federations), or
referendum of electorates as in Kenya, Australia, and
Switzerland).
04/07/24 33
• For instance, the usual method of Amending the
United States Constitution requires either initiation
by two-thirds of both Houses of Congress and
ratification by legislators of three-fourths of the
states or initiation by two thirds of states and
ratification by conventions in three-fourths of the
states i.e the 18th Amendment on prohibition).
• A distinction can be made among rigid constitutions
depending on whether the special amending
procedure is within the sole power of the
legislature or whether some outside agency has to
be brought in. In this latter case, such constitutions
may be said to be supreme over the legislature.
04/07/24 34
• Some parts of the Kenyan Constitution requires
special majority in the legislative authorities and
others require a referendum. Two kinds of
amendments require special majorities in national
or county legislative bodies;
1. Bills initiated by Parliament and which require two
thirds majority in both houses to pass [Article 256 (1)
(d)], and
2. a popular initiative supported by at least one million
registered voters and approved by a majority of county
assembles and passed by parliament (Article 257)
• Amendments requiring a referendum to effect
include those relating to: supremacy of the
constitution, territory of Kenya, sovereignty of the
people, bill of rights, national values and principles
04/07/24 35
• At times a constitution or part of it may not be legally
amenable, as certain articles of the Constitution of the
German Federal Republic of 1949and the basic articles
of the 1960 constitution of the Republic of Cyprus and
the representation of a state in the United States
Senate (unless that state consents) or it may be
unalterable before a certain time, e.g. certain
provisions of the United States Constitution before
1808. Hood Philips notes that in such cases, any
amendment would legally amount to revolution.
• Britain as observed which has an unwritten
constitution has the most flexible constitution.
However, written constitutions are not necessarily
rigid; the Constitutions of Australian states are written
04/07/24 36
 Parliamentary v presidential
• This is based on the mode of
distribution/separation of powers. Constitutions
may exemplify either of the two systems of
distribution of power. Britain and India best
exemplifies a parliamentary system while USA
represents a presidential system.
• In a parliamentary system government is operated
from within the legislature. Members of cabinet
and key government officials are drawn from the
legislature from where they operate from to
respond to questions and expectations of peoples’
representatives.
04/07/24 37
• Though policy development is by the executive,
parliamentarians normally make regular input and
scrutinize them. Pandey in describing India’s
parliamentary constitution had this to say,
– The constitution of India establishes a parliamentary
form of government both at the centre and the States.
The essence if the parliamentary form of government is
its responsibility to the legislature. The president is the
constitutional head of the State. The real executive
power is vested in the Council of Ministers whose head
is the Prime Minister. The Council of Ministers is
collectively responsible to the Lower House, that is Lok
Sabha.

04/07/24 38
• In presidential system, there is clear separation of
power between the executive and the legislature.
For instance, in the USA, executive powers are
exercised by a President popularly elected for a
period of 4 years.
• The executive is not part of the legislature neither is
there any fusion of power. Kenya Constitution is
also a presidential form of government where the
president is popularly elected for a period of 5
years.
• The president exercise executive powers together
with his cabinet whose members are not drawn
from nor do they sit in parliament.
04/07/24 39
 Unitary and Federal v confederal
constitutions
• In Many countries there exists separation of powers
between central government and states or provinces
which make up federations. These include USA,
Canada, Australia and Malaysia.
• Hilaire correctly observes that the powers divided
between the states, provinces and the federal
governments are normally clearly laid down in a
constituent document.
• The key characteristic of these kinds of governments is
separation and sharing of power between the central
government and independent states and or provinces.
In cases where the central government is almost co-
ordinate with the state authorities, as in the USA, such
systems qualify as proper federations.
04/07/24 40
• Where the central government is more powerful than
territorial authorities, such systems are referred to as
quasi-federal. Examples of these systems include
Canada and India.
• Confederations are characterized by territorial
governments that more power concentrated in them
than at the central government.
• Unitary constitutions on the other hand create
powerful central governments which in most cases do
not have replica sub-national authorities in the
hinterlands.
• Such constitutions distribute power between the
legislature, executive and the judiciary. However, as
Mbondenyi and Ambani observe, the quest for
democracy in the third world has tallied with the
rejection of overly concentrated forms of governments.
This observation is supported by Oyugi, who notes
04/07/24 41
that;
 – The popular demand for power sharing between the
centre and the sub-units in the national territorial
system has in the recent years reached a crescendo,
thereby constituting the quest for decentralized
governance virtually into a movement. The
decentralization movement in these societies is one
about the need for the disengagement of the sub-
national units of government from many years of central
control.
• This quest for democracy was quenched by the
2010 constitution which has decentralized power to
47 county governments. Kenya is therefore a quasi-
federal system in which only certain
powers/functions have been shared with the
county authorities. (schedule four of the
constitution)
04/07/24 42
 Supreme and subordinate
constitutions
• A supreme constitution refers to state in which the
legislative powers of the governing body are limited
while a subordinate constitution is one in which the
legislative powers of the governing body is not
limited.
• The constitution is subordinate to the legislature
which can amend the constitution without much
complex procedures as compared to those that
obtain in a supreme constitution which has complex
procedures for amending it
04/07/24 43
• Supreme also has the import of hierarchy of norms in
the legal system. In systems with supreme
constitutions, the constitution ranks top in the
hierarchy of legal norms.
• Any other norms have to conform to the constitution in
order for them to be considered valid even if they are
passed by parliament.
• Indeed the Kenya’s constitution is the Supreme legal
norm to which all other norms derive their validity
from by conforming to its requirements.
• (Article 2), the constitution declares itself the supreme
law of Kenya and binds all persons and all state organs
at both levels of government; the legality of the
supreme law is not to be challenged before any court
or any other state organ.
04/07/24 44
 Republican and Monarchial
• This classification is to be found in the architecture
and design of constitutions. In this respect, a
Republic is state that has a figure head usually a
President who is democratically elected by the
people of that State.
• The sovereignty of these states rests with the
people who donate it to the organs of government
and government officials through elections. The
essence of replicanism was conceptualized by
Madison as such;
04/07/24 45
• We may define a republic to be, or at least may bestow
that name on, a government which derives all its powers
directly or indirectly from the great body of the people, and
is administered by persons holding their offices during
pleasure, for a limited period, or during good behavior. It is
essential to such a government that it be derived from the
great body of the society, not from any inconsiderable
proportion, or a favoured class of it; otherwise a handful of
tyrannical nobles, exercising their aggressions by a
delegation of their powers, might aspire to the rank of
republican and claim for their government that the persons
administering it be appointed, either directly or indirectly,
by the people; and that they hold appointments by either
of the tenures just specified.
04/07/24 46
• A monarchy is a state in which the people have a
limited role in deciding their leaders and instead,
power is inherited among a section of the few
privileged class.
• Monarchical governments have declined and those
which have remained have been reduced to being
symbolic and ceremonial.
• Between 12 December 1963 and 12 December 1964,
Kenya was a monarchy in theory since the Queen
played a governance role through the Governor
General who was then the Head of State. He exercised
his powers in the name of the Queen.
• The 2010 Constitution establishes a republic in which
the people are sovereign and exercise their sovereign
power either directly or indirectly through their
democratically elected representatives.
04/07/24 47
 Secular and religious
• A secular constitution recognizes no religion as its
own while the opposite is true for religious
constitutions. By dint of Article 8, it arguable that
Kenya’s constitution is a secular constitution since it
declares that there shall be no State religion.
• However, despite this express declaration, the
constitution does make specific reference to God.
• For instance, in its preamble, it acknowledges the
supremacy of God same as in the national anthem.
This may be used to put across an argument that
the State is not aesthetic.
04/07/24 48
 CONCEPT OF THE STATE
• This concept of a state can be summed up as on
that has the following elements,
1. specific defined geographic territory
A state must have a territory. Constitutions therefore
seek to define the territories or international
boundaries of their states in detail. The import of
this, is the implications of boundaries in
international law on issues such as international
waters, shared common resources, air space e.t.c.
• The former constitution did not have any
definition of the territory of Kenya.
04/07/24 49
• Article 5 defines the territory of Kenya as consisting
of the territory and territorial waters compromising
Kenya on the effective date, and any additional
territory and territorial waters as defined by an Act
of Parliament.
• Some constitutions just define boundaries by
referring to boundaries recognized under
international law. Article 5 (5) of the 2004 draft
constitution had this approach where it stated that,
‘ Kenya consists of the territory recognized under
international law.’

04/07/24 50
– 2. State must have a community of people
A state must have a people and some constitutions may
seek to define a people. However, in many states, this is
done through the concept of citizens. Constitutions
therefore seek to define who is a citizen, how citizenship
can be acquired, lost or conferred and what rights go
with citizenship. While this is the common trend, it is
susceptible to criticism to the effect that, it creates an
impression that non citizens in a particular country may
not be a people entitled to benefits of governance.
The former constitution addressed the issue of citizenship
in sections 81 to 98. these were criticized as being
inadequate but also discriminatory to women. They
didn’t have provisions for dual citizenship, they didn’t
make any provision on rights and duties of citizenship
e.t.c.
04/07/24 51
• The current constitution deals with citizenship
in Chapter three. Article 12 prescribes the
entitlements of citizens, gives provisions on
how citizenship may be acquired, retained or
lost (Article 13), and also provides for dual
citizenship in Article 16. some of the
entitlements of citizenship is a passport of
document of registration or identification that
is to be issued by the state. The state has an
obligation to register and issue identification
documents to its citizens.

04/07/24 52
 3. Language for communication
It follows that if a state has a people, the people must
communicate through language. Constitutions while
constituting state, normally make provisions for national
languages to be used as the primary mode of communication.
In homogenous states, this aspect is not always problematic
as opposed in heterogeneous states where there always
reservations of communities to use the language of other
communities as a national language. For instance, in Federal
states such as Canada & Quebec, the states are allowed to
use their own dialect as official language. But what of in
Canada where there is an English Canadian and a French
Quebec???
The South African Constitution provides for 11 official languages
10 of them being local languages. The constitution recognizes
that these languages had historical diminished uses and thus
gives an obligation to the state of elevating their stature and
uses.
04/07/24 53
• Article 7 provides for Kiswahili as the national
language while the official languages are Kiswahili
and English.
• The state however has an obligation to promote
and protect the diversity of language of the people
of Kenya, promote the development and use of
indigenous languages, Kenyan sign language, Braille
and other forms of communication.
• This obligation is meant to cure the negative
attitude towards indigenous languages by the
Kenyan elite.

04/07/24 54
 4. Religion
Often, a people must have a religion and therefore
constitutions seek to address the issue of state religion.
This is normally an emotive issue which calls for mutual
respect and tolerance among religions. Based on this
premise, most constitution s do not provide for state
religion but rather provide and protect the freedom of
religion.
They go a step further and seek to separate between
state and religion and even call for mutual respect and
tolerance. Article 8 declares that there shall be no State
religion. Article 32 on the other hand, provides for the
freedom conscience, religion, thought, belief and
opinion.
Read the case of J
04/07/24 55
• Constitutions constitute people into a polity known
as state not as end but as a means to an end. The
end purpose is to create a common power that can
be used in service of common welfare of the people
who must survive and preserve themselves.
• Given the centrality of resources in the project
‘survival and self preservation’, the purpose of
creating a polity was to ensure proper
management, development and equitable
distribution of resources. The state therefore has to
manage both natural and service resources.
• Natural resources comprise of land, environment
while service resources include apparatus of force,
security forces, and public service.
04/07/24 56
• Many constitutions make provisions for proper
management, development and equitable distribution
of resources. The former constitution never made any
provisions for this, thus it contributed to unequal
distribution of resources, abject poverty, high
standards of corruption e.t.c..
• The current constitution remedies this in chapter five
where it provides for principles of land management
which includes equitable access, sustainable and
productive management of land while on issues of
environment and natural resources, Article 69 gives
obligations on the state to ensure sustainable
exploitation, utilization, management and conservation
of the environment and natural resources and ensure
equitable sharing of accruing benefits.
• 04/07/24 57
• Chapter 12 makes provisions for public finance where
Article 201 gives the state an obligation to ensure that
the system of public finance is open, accountable and
allows public participation and that it promotes an
equitable society.
• National revenue is to be shared equitably between
national and county governments. Article 203 gives
core conditions to be factored in in equitable
distribution of national revenue. Counties are to share
at least 15% of the national revenue of last audited
accounts of the government.
• The constitution introduces the concept of equalization
fund that is to be used to provide basic services to
marginalized areas in order to bring the quality of
those services in such areas to the level generally
enjoyed by rest of the country. This amount is 0.5% of
all national revenue.
04/07/24 58
• Chapter 13 provides for public service. It establishes a
public service commission and constitutes values and
principles of public service which include; high
standards of professional ethics, efficient, effective and
economic use of resources, responsive, prompt,
effective, impartial and equitable provision of services,
involvement of people in policy making e.t.c.
• This is what the people should expect from the public
service that is obligated to provide different services to
the polity. These values and principles create a
legitimate expectation on the part of the
polity/citizens.
• Chapter 14 deals with the security apparatus and
includes the objectives of the apparatus which is to
protect against internal and external threats to Kenya's
territorial integrity and sovereignty, its people, their
rights, freedoms, property, peace, stability and
prosperity and other national interests.
04/07/24 59
 SUPREMACY OF THE CONSTITUTION
• The principle of constitutional supremacy
presupposes a hierarchy of legal norms in which the
constitution is at the apex. Accordingly, the
constitution in this hierarchy is the most important
piece of law in the legal system and ranks above all
other legislations, customs, conventions and
principles. It gives legitimacy to all other legal
norms, thus in the event of a conflict between it
and other legal norms, then the constitution
prevails.
• There are various justifications for this principle.
These include; 61
 1. Express constitutional provisions
• Article VI, clause 2, of the USA Constitution
provides:
– This Constitution, and the Laws of the United States
which shall be made in Pursuance thereof; and all
Treaties made, or which shall be made, under the
Authority of the United States, shall be the supreme
Law of the Land; and the Judges in every State shall be
bound thereby, any Thing in the Constitution or Laws of
any State to the Contrary notwithstanding
• From the above, it is clear that there are only three
sources of supreme federal law. The constitution,
federal laws and Treaties. 62
• The South African Constitution in terms of
supremacy provides in Article 2 that;
– This Constitution is the supreme law of the Republic; law
or conduct inconsistent with it is invalid, and the
obligations imposed by it must be fulfilled.
• In the case of S V Makwanyane, the court of south
Africa invalidated section 277 (1) (a) of the criminal
procedure code Act of 1977 which provied for
death penalty for being contrary to right to life and
dignity.
• Kenya’s Constitution expressly provides in Article 2
under the heading ‘Supremacy of this Constitution’
a similar heading to that of the South African
Constitution, that;
63
 – This Constitution is the supreme law of the Republic and
binds all persons and all state organs at both levels of
government.
• Article 2 (2) grounds the centrality of the Constitution
by stating that state authority is to be claimed and
exercised by an person in accordance with the
Constitution.
• The Constitution is the source of any authority of a
state organ; by this clause, it legitimizes the claim and
execution of any state function by a state organ or
persons holding such offices.
• Supremacy of the Constitution of Kenya is also to be
found in Article 2 (3) which safeguards the constitution
from being challenged as to its validity or legality by
any person before any court or other state organ.
64
• The previous constitutional order faced validity
threats before the court of laws. First it was in the
Njoya case the Court fell short of declaring some
sections of the Constitution invalid. While decrying
the various amendments that the former
constitution had been put through, J Ringera had
this to say;
– The effect of all those amendments was to substantially
alter the constitution. Some of them could not be
described as anything other than an alteration of the
basic structure or features of the Constitution.. All I can
say in that respect is that, fortunately or unfortunately,
the changes were not challenged in the courts and so
they are now part of the constitution. 65
• What the judge was alluding to the purportedly power
of the courts to challenge some parts of the
constitution as being invalid.
• The analysis of this judgement can be pushed further
to explore as to whether the court was seeking to
usurp the power of the people then, to change the
constitution through their representatives!?
• Though the court in the Njoya case never declared
some sections of the constitution invalid, the court in
the case of Jesse Kamau where sections 66 of the
former constitution (established the Kadhis Court)
were challenged in the High Court. The ground of the
challenge was that the section was inconsistent with
the secular nature of the Republic. 66
• The court while impugning section 66 stated as
follows;
– As between state and religion each had its own sphere,
the power of law making for the public good and the
latter of religious teaching observance and practice. To
the extent that section 66 sought to give to religious
principles and commandments the force and character
of law, religion stepped out of its own sphere and
encroached on that of law making in the sense that it
was made to coerce the state into enacting religious
principles and commandments into law.
• The court went ahead and declared section 66
invalid. However, this situation is not possible
under the current constitution by virtue of Article 67
• In terms of hierarchy in the order of legal norms,
Article 2 (4) saves the apex position to the
constitution as the grundnorm from which all other
laws derive their validity from. It provides that,
– Any law, including customary law, that is inconsistent
with this Constitution, is void to the extent of the
inconsistency, and ant act or omission in contravention
of this constitution is invalid.
• The power to declare other legal norms invalid
based on the constitution is judicial and is vested in
the high court by virtue of Article 165 (3) (d) which
states as follows;

68
 – The high court has jurisdiction to hear any question
respecting the interpretation of this constitution including
the determination of -(i) the question whether any law is
inconsistent with or in contravention of this constitution; (ii)
the question whether anything said to be done under the
authority of this constitution or of any law is inconsistent
with, or in contravention of, this constitution; (iii) any matter
relating to constitutional powers of state organs in respect of
county governments and any matter relating to the
constitutional relationship between the levels of
government and (iv) a question relating to conflict of laws
under Article 191.
• The Constitution also provides for appeals of matters
challenging the constitution to the Court of Appeal and
Supreme Court. Article 164 (3) gives jurisdiction to
court of appeal to hear appeals from the High Court
while Article 163 gives jurisdiction to the Supreme
Court to hear and determine appeals from the Court of
Appeal. 69
• Further, Article 20(1) with respect to the Bill of
Rights postulates that the ‘Bill of rights applies to all
law and binds all state organs and all persons’.
• This Article has the effect of ranking the
Constitution and in particular the Bill of rights at the
core of other laws and state functions.
• By conduct, state organs are required to be mindful
of the Bill of rights and give them effect through
their policy and decisions.

70
 2. The judicature Act
• The Judicature Act, though to be read, interpreted
and applied within the current constitution which
introduces new sources of law, it does offer a list of
sources of law in Kenya.
• From the Act, the Constitution is at the very top.
• From the order of the list, there is a presumption
that the constitution is supreme and as such it
ought to prevail in the event there is a contradiction
between it and other laws.

71
 3. Judicial Precedents
• Constitutional supremacy as a doctrine traces its
origin from the famous case of Marbury v Madison
where the Supreme Court held that;
– Supremacy of the constitution is pertinent to the
tradition of written constitutions as opposed to the
unwritten tradition as is the case in Britain and it would
amount to an absurdity or ‘solemn mockery’ if this
hallowed status is not accorded the constitution. Failure
to uphold constitutional supremacy, the court further
observed, flies in the face of the judicial oath as judges
swear allegiance to the written constitution. It is
therefore logical that a document of this character
ought to override all other norms. 72
• The rationality of the doctrine was emphasized by
CJ Marshall as thus;
– The powers of the legislature are defined and limited;
and that those limits may not be mistaken, or forgiven,
the constitution is written. To what purpose are powers
limited, and to what purpose is that limitation
committed to writing, if these limits may at any time, be
passed by those intended to be restrained? The
distinction between a government with limited and
unlimited powers is abolished, if those limits do not
confine the persons on whom they are imposed, and if
acts prohibited and acts allowed, are of equal obligation.
It is a proposition too plain to be contested, that the
constitution controls any legislative act repugnant to it;
or, that the legislature may alter the constitution by an
ordinary act.
73
• Our courts through judicial precedents have
recognized the doctrine of the supremacy
constitution. In the case of Okunda v Republic, the
court while considering section 3 of the former
constitution stated that;
– If a constitutional lawyer were to write about in the
strain as Dicey did about England, he would, to be
accurate, have to emphasize the supremacy of the
constitution rather than one organ of government. The
constitution and any Acts amending it must in the nature
of things override all other laws.
• Section 3 of the former constitution provided that,

74
 • This constitution is the constitution of the Republic of Kenya and
shall have the force of law throughout Kenya and, subject to
section 47, if any other law is inconsistent with this constitution,
this constitution shall prevail and the law shall, to the extent of
the inconsistency, be void.
• In the case of Stephen Mwai Gachieng and Albert
Muthee Kahuhia v Republic of Kenya, the court
invalidated the Kenya Anti Corruption Authority
(KACA) on grounds that the constituting Act was not
unconstitutional for giving enormous prosecutorial
powers to KACA thereby usurping the AG who had
the constitutional powers of prosecutorial.

75
 4. Basic Norm theory
• Kelsen in his basic norm theory conceptualizes a legal
system as composing a number of norms which are
hierarchy in order. In this order, each norm extracts its
validity from the norm immediately above it.
• All other laws, thus according to Kelsen, owe their
validity to the basic norm which constitutes the
plurality of all norms forming a system. A plurality of
norms creates a unity, a system, an order and as such,
the validity of the norms can be traced back to a single
norm (basic norm) as the ultimate basis of validity.
• The constitution can be said to be the basic norm in a
legal system that creates and validates all the other
legal norms below it. 76
 5. Social contract theory
• The concept of supremacy of the constitution also finds
grounding in the philosophy of law. Thomas Hobbes argues
that the modern system of government owes its existence to
the excesses of an initial primitive society operating without
any form of common administration.
• Men therefore conducted business under the dictates of
their unlimited instincts and did not have to conform to any
organized system of rules imposed by, say, government.
• Society in this state of nature was in a condition of war of
everyone against every one because would be governed his
or her own reason. There were notions of justice, right or
wrong.
• Hobbes in reference to this state of nature states that, where
there is no common power, there is no law; where no law, no
justice. 77
• This state of nature where life was nasty and brutal
that led men to organize themselves into a civil society
where all individuals surrender their natural rights to
violence to a form of government in exchange for
mutual security and fundamental rights.
• Hobbes extrapolates the process of social contract and
justifies it as such,
– A man can lay aside a right either by simply renouncing it or
by transferring it to someone else. He RENOUNCES it when
he doesn’t care who gets the benefit. He TRANSFERS it when
he intends the benefit to go to some particular person or
persons. And when a man has deprived himself of a right in
either of those ways—abandoning it or giving it away—he is
said to be OBLIGED or BOUND not to hinder those to whom
such right is given or abandoned from having the benefit of
it; and ·it is said· that he ought, and that it is his DUTY, not to
deprive that voluntary act of his of its effectiveness; and ·if
he does so·, that hindrance is ·what we call· INJUSTICE and
INJURY 78
• In social contract, the benefit is intended to go to all
persons in the society. A constitution is the social
contract that contains all the natural rights which
the people have transferred to particular
institutions (the government) in exchange of
security and guarantee of human rights.

79
 Features and Characteristic of the
Constitutional supremacy
1. The condition of the constitutional supremacy is
that, the constitution must be written.
2. The constitution must be rigid and maintain
procedure.
3. In constitutional supremacy, there is a distinction
between constitutional law and ordinary law.
4. Parliament is created by the constitution itself.
5. Parliament can exercise its function being only within
the bounds of the constitution.
6. In constitutional supremacy, there has judicial review.
7. If any contradiction between constitutional law and
ordinary law of the republic, the constitution shall get
prevail and get priority 80
81
 Meaning of Rule of Law
• Strictly speaking, this doctrine is neither a rule of law
• It is a doctrine of political morality that aims at
ensuring the correct balance of rights and powers
between individuals and the state
• As a doctrine, it aims to prevent the exercise of
arbitrary or tyrannical power
• WI Jennings explains the doctrine as follows;
– Rule of Law means a limitation of power on every authority,
except perhaps a representative legislature.
– A sovereign or any person acting on behalf of a state can
only exercise a power as long as he can authorise his act
through an existing law
• Julius Stone says of rule law that, The true essence
of the rule of law is that those in power recognize
that their power is “wielded and tolerated only
subjects to the restraints of shared socio-ethical
conventions.
• The ICJ defines rule of law as the a doctrine that is
characterized by the principles, institutions and
procedures have shown to be important to protect
the individual from arbitrary government and
enable him to enjoy the dignity of men.
 Rule of Law from Dicey’s perspective
• After a study of the UK Constitution, Dicey had this to
say of the doctrine;
• It means, in the first place, the absolute supremacy or
predominance of regular law as opposed to the
influence of arbitrary power, and excludes the
existence of arbitrariness, of prerogative, or even of
wide discretionary authority on the part of the
government.
• He went to note that, in England no man can be made
to suffer punishment or to pay damages for any
conduct not definitely forbidden by law; every man's
legal rights or liabilities are almost invariably
determined by the ordinary Courts of the realm, and
each man's individual rights are far less the result of
our constitution than the basis on which that
constitution is founded
 Dicey’s conception of rule of law
• He went on to say that it also means, again, equality before
the law, or the equal subjection of all classes to the ordinary
law courts; the ‘rule of law’ in this sense excludes the idea of
any exemption of officials or others from the duty of
obedience to the law which governs other citizens or from
the jurisdiction of the ordinary tribunals
• According to Dicey’s definition, three meanings can be
inferred;
 First,
 ‘It means in first place, the absolute supremacy or
predominance of regular law as opposed to the influence of
arbitrary power, and excluded the existence of arbitrariness,
of prerogative, or even a wide discretionary authority on the
part of the government.... A man can be punished for a
breach of law, but he can be punished for nothing else
 Dicey’s conception of rule of law
• Thus his first point refers to absence of arbitrary
power
• Such a power can be defined that has no
identifiable legal origins or limits.
• Example Entick v Carrington 1765: court refused to
accept that a government Minister in absence of
any common law or statutory authority had any
power to grant warrants permitting entry and
search of private premises
 Dicey’s conception of rule of law
• No person can be punished except for a breach of law.
Penalty can only be imposed on an individual for a breach of
an established legal rule proved in the ordinary courts of law
• SECOND PART OF THE DICEY’S DEFINITION
• ‘equality before the law, or the equal subjection of all classes
to the ordinary law of the land administered by the ordinary
courts’
• No one is above the law, officials and citizens need to obey
the same law
• He opposes that officials enjoy legal privileges and
immunities
• Crown Proceedings Act 1947 (Crown to be sued in contract
and tort
 Dicey’s conception of rule of law
• THIRD,
• ‘the law of the Constitution, the rules which in
foreign countries form part of a constitutional code,
are not the source but the consequence of the
rights of individuals, as defined and enforced by the
courts..., thus the constitution is the result of the
ordinary law of the land.
• The meaning of this statement implies that the
rights of the individual are not only ensured by the
guarantees set down in a formal document but by
the ordinary remedies available against those who
unlawfully interfere with someone’s liberty
 Rule of law
• There have been some interpretation to give
the doctrine greater content.
• idea to offer minimum standards in terms of
the way, laws are expressed and administrated
• The emphasis is on the need for the rules and
procedures that would ensure that laws are
used for the protection of rights and not just a
means of legitimising the use of powers.
 Rule of law
• Hayek explains, the rule of law means that people
do not have to answer to the arbitrary decisions of
governmental officials; instead, they guide their
actions by what is prohibited by a clearly defined
law. Freedom, therefore, means answering only to
a well-defined, previously established law, rather
than to the arbitrary and discretionary edicts of
some.
 Adaptation of the rule of law by
Joseph Raz
• One of the proponents of the doctrine is Joseph
Raz (1977). He proposed a procedurally oriented
version of the doctrine in 8 postulates. He shares
common ground with the constitutional theorists
A. V. Dicey Hayek. Thomson.
• Raz's principles define the requirements that
should guide the individual's behaviour and
should minimize the danger that could result from
the exercise of discretionary power in an arbitrary
way.
 Raz’s principles
• 8 of Raz's principles are as follows:
– 1. That law should be general ( not discriminate)
prospective rather than retroactive, open, clear
– 2. Law should be stable and not changed too frequently,
as lack of awareness of the law prevents one from being
guided by it.
– 3.There should be clear rules and procedures for making
laws.
– 4. The independence of the judiciary has to be
guaranteed.
 Raz’s principles
– 5. The principles of natural justice should be observed,
particularly those concerning the right to a fair hearing..
– 6.The courts should have the power of judicial review
over the way in which the other principles are
implemented.
– 7. the courts should be accessible; no man may be
denied justice.
– 8. the discretion of law enforcement and crime
prevention agencies should not be allowed to pervert
the law
 Raz
• According to Raz, the validity of these
principles depends upon the particular
circumstances of different societies, whereas
the rule of law generally "is not to be
confused with democracy, justice, equality
(before the law or otherwise), human rights of
any kind or respect for persons or for the
dignity of man
 Rule of law in Kenya’s
Constitution
• The concept of rule of law can first be manifested in the
written constitution that Kenya has.
• Jennings argues that the law regulates political action far
more closely where there is a written constitution
prescribing more fundamental functions of government
than where there is a supreme legislature as in the UK.
• Our constitution declares itself in Article 2(1) as supreme
law and binds all persons and all other state organs
while in Article 2(2), it gives the basis for exercise of any
state authority while in sub article 4 it invalidates any
law, act or omission that is contrary to it.
 Rule of law in Kenya’s Constitution
• Enacting a constitution, from the purview of Jennings,
is a resolve to uphold the rule of law.
• All actions, programs actions and policies of the
government by virtue of Article 2 must be based on
rule of law.
• Article 10 (a) provides that the values and principles of
good governance include rule of law, democracy and
participation of people among others.
• Chapter 4 guarantees fundamental rights and freedoms
of the individual. Hence unlike the function of the
courts in UK according to Dicey’s conception of rule of
law, rights are stipulated by the constitution
 Rule of law in Kenya’s Constitution
• Every person by virtue of Article 22 (1) has the right
to vindicate his infringed rights before a court of
law and Article 48 guarantees access to justice for
all persons.
• As per Diceys conception, Article 50(n) the right of
an accused person not to be convicted for an act or
omission that at the time it was committed or
omitted was not an offence in Kenya or under
international law.
 Implications of the rule of law today
• 1) the rule of law should embody a preference for orderly life
within an organised society
• 2) the rule of law expresses fundamental principle that
government must act according to law and in the cases
before the court what the law requires must be enshrined in
judicial decision
• 3) the rule of law should be applied according to the
procedures lied down for its execution
• the rule of law as a cornerstone of contemporary
constitutional democracy as was underscored by its role in
cementing the recent transitions from authoritarian or
totalitarian regimes to constitutional democracy
• In the absence of the rule of law, contemporary
constitutional democracy would be impossible.
 Concept of sovereignty of the People
• People are the ultimate and only legitimate basis
for government and the people posses the right
to reform, alter or abolish their government at
any time.
• This concept is said to constitute three elements
that characterize it;
1. the power to constitute a government
2. The power to choose those who run the government
3. The power to be involved in governing

04/07/24 100
• The American Declaration of Independence enunciated the
right of the people to alter or abolish the government
whenever it become destructive to the peoples inalienable
rights such as to life, liberty and the pursuit of happiness
• Fritz notes that this theory of the principle justified the
American revolution and republican government and
established a basic premise in American political life; that
political legitimacy ultimately rested with the consent of the
people.
• According to historian, William C. Culberson, as the concept
developed, the 19th century citizens unlike the 20th, asserted a
closer relationship with their government including a greater
expectation of political accountability and responsiveness.
They accepted more completely the concept that the
government is the servant of the people, subject to their
immediate control, and that people had a right to shortcut
government
04/07/24
and overrule their officials 101
• Elisha Corsby while analyzing the conditions for the
California citizens to establish a government, he noted
that;
– Every man carried his code of laws on his hips and
administered it according to his own pleasure
• The mere fact every man is the holder of his code of
laws tends to show that sovereignty resides and rests in
him and that is why he exercises it at his own pleasure.
• Military governor of California justified the call for a
convention on grounds that Congress had failed to
organize a new territorial government, it becomes our
imperative duty to take some active measures to
provide for existing wants of our country”
• Though Riley did not succeed, San Francisco had
already organized a constitutional convention on
grounds that people had a right to establish a
government
04/07/24
for their protection. 102
• Riley had called for ratification by the delegates
present at the convention which delegates at Montreal
agreed while the Francisco movement suggested that
a government drew its legitimacy from the people and
thus required a popular ratification
• During the delegation, one delegated noted that,
popular sovereignty was the fundamental principle of
the republican government and the people need hardly
be reminded that they posses this power
• Likewise, in the old constitutional order, though there
was no express provision on popular sovereignty, the
court did indeed recognize this noble principle in the
Njoya case where the court stated that;
04/07/24 103
• Article 1(1) expressly provides for the sovereignty of
the people which is to be exercised in accordance
with the constitution.
• The people of Kenya therefore promulgate a law
that will guide the exercise of their sovereign power
as a collective.
• The people reserve their right to exercise their
sovereign power directly or through elected
representatives by dint of Article 1 (2)
• Article 1 (3)the sovereign people of Kenya delegate
their sovereign powers to; parliament and county
legislative assemblies; the national and county
executives and the judiciary and independent
tribunals.
04/07/24 104
• Article 73 reflects the manner in which the sovereign
wishes his power to be exercised by state officers. It
provides that authority assigned to a state officer is a
public trust that is to be exercised in a manner
consistent with purposes and objects of the
constitution, demonstrates respect for the people…
vests in that officer, the responsibility to serve the
people rather than the power to rule them.
• Article 38 guarantees the freedom of the people to
make political choices which include the right to form,
participate in forming political parties, right to free, fair
and regular elections based on universal suffrage and
free expression of the will of electors.
• Chapter seven deals with the procedure of the people
electing their representatives
04/07/24 105
• The legislature in accordance with Article 1, derives by virtue of
Article 94 (1) its legislative authority from the people.
• Article 104, enshrines the power and right of the people to recall
their representatives before the end of their term. This right is
however, restricted to the extent that it ought to be effected
through an Act of parliament?!
• Article 118 requires parliament to facilitate public participation
and involvement in the legislative and other business of
parliament and its committees. (direct participation)
• Further, Article 119 reserves the right of every person to petition
parliament to consider any matter within its authority including to
enact, amend or repeal any legislation.
• The executive authority is derived from the people and is to be
exercised in a manner compatible with the principle of service to
the people of Kenya, for their well being and benefit. (Article 129)
• Article 144 and 145 provides for the procedure of removal of the
president as well as his impeachment. This right is vested by the
people in the National Assembly and the senate respectively.
04/07/24 106
• Judicial authority is also derived from the people and is
vested in and to be exercised by the courts and tribunal
established under the constitution-Article 159.
• Under Article 174, the objects of devolution is to give self
governance to the people, enhance their participation in
exercise of state power and in making decisions affecting
them, t recognize the right of communities to manage their
own affairs and to further their development
• Read the following Articles of the constitution in terms of
people exercising their sovereign power 201, 232(d) 238 (c),
• The constitution creates independent commissions whose
objectives include to protect the sovereignty of the people-
Article 249
• The people also reserve the right to amend the constitution
through popular initiative or through their representatives.

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