The 2010 Constitution of Kenya: Rewriting a Nation’s Future

A Nation at the Crossroads

On the morning of August 27, 2010, thousands gathered at Nairobi’s Uhuru Park. The atmosphere was electric. For once, Kenya was united in celebration. President Mwai Kibaki, flanked by Prime Minister Raila Odinga and Vice President Kalonzo Musyoka, held up a green-covered document—the new Constitution of Kenya. The crowd roared.

This wasn’t just ceremonial. It was transformational. After decades of centralized authority, ethnic strife, electoral injustice, and constitutional manipulation, Kenya had turned a new page.

This is the story of how a people, through pain, protest, and persistence, rewrote their nation’s future.

Chapter One: The Colonial Foundations and Post-Independence Betrayal

1963: Independence and a Compromised Start

Kenya gained independence from Britain on December 12, 1963. But the Constitution handed to Kenyans at Lancaster House in London was a colonial relic. Drafted primarily by British lawyers, it retained many imperial structures—strong executive powers, weak local governments, and a pliable judiciary.

1964: Republican Status and Centralization

A year later, Kenya became a republic. The Prime Minister’s office was abolished, and Jomo Kenyatta became President. Between 1964 and 1969, key constitutional amendments:

• Abolished regional governments (“Majimboism”)
• Concentrated power in the presidency
• Undermined the independence of the judiciary and legislature

The Constitution became a tool of executive entrenchment.

1970s–1990s: Moi Era and Constitutional Abuse

Daniel arap Moi, who took over after Kenyatta’s death in 1978, used the Constitution to consolidate absolute authority. In 1982, Kenya became a de jure one-party state under KANU through the Section 2A amendment. Dissenting voices were arrested, tortured, or exiled.

Key abuses included:

• State repression under the Nyayo House torture chambers
• Executive appointment and dismissal of judges
• Suspension of multiparty politics
• Ethnic favoritism

This dark era galvanized the pro-democracy movement.

Chapter Two: The Struggle for a New Constitution (1990–2005)

1991: Return of Multipartyism

Under immense domestic and international pressure, Moi repealed Section 2A in December 1991. Kenya re-entered multiparty democracy. But elections remained deeply flawed, marked by state-sponsored ethnic clashes in 1992 and 1997.

1997–2002: Ufungamano Initiative and Bomas Process

Civil society, the church, and opposition leaders pushed for constitutional reform:

• Ufungamano Initiative (1999): Led by religious and civil groups
• Constitution of Kenya Review Commission (CKRC) formed in 2000, chaired by Prof. Yash Pal Ghai

The CKRC conducted extensive public consultations across the country. Their efforts culminated in the Bomas Draft of 2004, which:

• Proposed a parliamentary system
• Limited executive power
• Strengthened the judiciary and local governments

2005: The Wako Draft Referendum

However, President Mwai Kibaki’s allies, fearing loss of power, altered the Bomas Draft into what became the Wako Draft. In the 2005 referendum:

• 58% voted “No”
• The draft was rejected, exposing deep political divisions

This loss sowed the seeds of future violence.

Chapter Three: 2007–2008 Post-Election Violence and the Breaking Point

December 2007: Disputed Elections

The 2007 presidential election was a flashpoint. Raila Odinga accused the Electoral Commission of rigging in favor of incumbent Kibaki. Violence erupted:

• Over 1,300 people were killed
• Over 600,000 displaced
• Ethnic cleansing occurred in several parts of the country

The world watched in horror as Kenya teetered on the brink of civil war.

February 2008: Kofi Annan and the National Accord

Former UN Secretary-General Kofi Annan brokered a power-sharing deal under the African Union Panel of Eminent African Personalities. The outcome:

• Kibaki retained the presidency
• Raila Odinga became Prime Minister
• A coalition government was formed

Agenda Four of the Accord required comprehensive constitutional reform to prevent a repeat of the chaos.

Chapter Four: Drafting the 2010 Constitution

2009: Committee of Experts (CoE)

Established in March 2009, the CoE, led by Nzamba Kitonga, was mandated to:

• Harmonize previous draft constitutions
• Consider views from the public
• Produce a final draft for referendum

Key Influences on the Final Draft:

• Bomas Draft (2004)
• Wako Draft (2005)
• Harmonized Draft by CoE

Public Participation and Transparency

The CoE conducted civic education campaigns, published drafts online and in newspapers, and held forums in all 47 counties.

2010: Referendum

• Held on August 4, 2010
• Over 9.3 million votes cast
• 67% voted “Yes” (over 6 million)
• 33% voted “No” (over 2.7 million)

The Constitution was officially promulgated on August 27, 2010.

Chapter Five: Features of the 2010 Constitution

1. Devolution (Chapters 11 & 12)

Created 47 counties, each with:

• An elected Governor
• A County Assembly
• A budget drawn from national revenue (minimum 15%)

Impact: Decentralized service delivery in health, agriculture, and infrastructure.

2. Bill of Rights (Chapter Four)

Protects civil, political, economic, social, and cultural rights:

• Freedom from torture
• Right to education, health, water, and shelter
• Protection of minorities and marginalized groups

3. Judiciary Reform (Chapter 10)

• Creation of the Supreme Court
• Establishment of the Judicial Service Commission (JSC)
• Tenure security for judges

4. Legislature and Executive (Chapters 8 & 9)

• Bicameral Parliament: National Assembly and Senate
• Cabinet Secretaries are no longer MPs
• Reduced presidential immunity

5. Leadership and Integrity (Chapter Six)

• Demands high ethical standards from public officers
• Requires vetting of senior officials
• Forms basis for removal from office due to misconduct

6. Commissions and Oversight Bodies

Key commissions include:

• IEBC – elections
• EACC – anti-corruption
• SRC – salaries
• CAJ (Ombudsman) – administrative justice

Chapter Six: Key Court Cases and Legal Milestones

1. Mumo Matemu v Trusted Society of Human Rights Alliance (2013)

• Landmark case on Chapter Six (Integrity)
• Matemu’s appointment to EACC challenged
• Court of Appeal emphasized objective vetting standards

2. Adrian Kamotho v COG & Others (2016)

• On public participation in policy-making
• Reinforced Article 10 principles of transparency and inclusivity

3. Railu Odinga & Others v IEBC (2017)

• Presidential election nullified for irregularities and illegalities
• Supreme Court became the first in Africa to annul a presidential election
• Showed judicial independence under the 2010 framework

4. BBI Appeals (2021–2022)

• Building Bridges Initiative declared unconstitutional by:
  • High Court (May 2021)
  • Court of Appeal (August 2021)
  • Supreme Court (March 2022)

Key ruling: The President cannot initiate constitutional amendments through a popular initiative under Article 257.

Chapter Seven: Key Personalities Who Shaped the Constitution

1. Prof. Yash Pal Ghai

• Chair of the CKRC
• Architect of the Bomas Draft
• Advocate of people-driven reform

2. Nzamba Kitonga

• Chair of the Committee of Experts
• Oversaw the harmonization process
• Legal scholar who balanced competing interests

3. Raila Odinga

• Long-time opposition leader
• Key figure in rejecting the 2005 draft
• Pushed for robust devolution

4. Mwai Kibaki

• Oversaw final drafting and referendum
• Initially resisted reform but endorsed the 2010 Constitution

5. Kofi Annan

• Broker of the National Accord
• Helped create the framework that birthed the 2010 Constitution

Chapter Eight: Challenges in Implementation

1. Corruption at County and National Levels

• Governors mismanage devolved funds
• National corruption scandals (e.g., NYS, Afya House) continue

2. Unfulfilled Gender Rule

• Article 81(b) requires not more than two-thirds of one gender in elective positions
• Parliament has failed to enact the enabling law
• Supreme Court ruled in 2012 and 2020 that Parliament is in violation

3. Weak Political Will

• Politicians have undermined independent institutions
• Efforts to weaken IEBC, EACC, and judiciary

4. Public Ignorance

• Civic education has lagged
• Many citizens unaware of their rights or devolution mechanisms

Chapter Nine: The BBI Debate and the Attempt to Amend the Constitution

What Was BBI?

• Proposed by President Uhuru Kenyatta and Raila Odinga
• Promised national unity, inclusion, and peace
• Proposed:
  • New positions (Prime Minister, Deputies)
  • Enhanced devolution funds
  • Judicial ombudsman appointed by the President

Opposition and Legal Defeat

• Civil society and activists (e.g., David Ndii, Jerotich Seii) challenged BBI
• Courts ruled it unconstitutional due to:
  • Violation of basic structure doctrine
  • Presidential overreach
  • Inadequate public participation

Chapter Ten: The Future of Kenya’s Constitution

Has It Worked?

Successes:

• More accessible services in counties
• Greater judicial independence
• Legal recognition of socio-economic rights
• Political accountability through court action

Failures:

• Rampant corruption remains
• Ethnic politics persists
• Gender and minority inclusion still symbolic
• Institutions remain vulnerable to executive pressure

Rewriting the Nation Is Ongoing

The 2010 Constitution gave Kenyans the most progressive and people-centered legal framework in the region. But a constitution is only as strong as the hands that uphold it.

The vision was clear: equitable development, inclusive leadership, fair justice, and human dignity. While progress is visible, the road remains long and rugged.

This Constitution is not just a document—it is a contract. One written in the blood of those who fought for freedom, and in the hopes of generations yet to come.

In your view, has the 2010 Constitution truly transformed Kenya—or have we merely changed the script while keeping the same actors?

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