''WE, THE PEOPLE OF KENYA'' AS THE SOVEREIGN IN POST-2010 CONSTITUTIONAL AMENDMENTS: A COMPARATIVE APPROACH (LLM RES. PROPOSAL, UNISA 2024) (original) (raw)

2024, ''WE, THE PEOPLE OF KENYA'' AS THE SOVEREIGN IN POST-2010 CONSTITUTIONAL AMENDMENTS: A COMPARATIVE APPROACH (LLM RES. PROPOSAL, UNISA 2024)

Kenya adopted a new Constitution in 2010 that has been described as a ‘Transformative Charter’ because it is the most comprehensive rendering of the Kenyans’ aspirations with far-reaching consequences on society’s legal, historical, political, socio-economic, and cultural spheres. The Kenyan Supreme Court (KESC) has had the opportunity to pronounce itself on the transformative nature of the Constitution, whose goal is to institute large-scale social change and reforms via a value-based approach to social justice, freedom, human rights, equality, equity, democracy, and the rule of law. The first Judges of the KESC correctly acknowledged that the 2010 Constitution is transformative and progressive. This transformative nature of the 2010 Constitution has the import of informing its interpretation that must be holistically and unfavourable to formalistic or positivist approaches; protect its values, objects and purposes; and incorporate nonlegal considerations to give its true meanings and values. Alive to the stability and predictability of fundamental rules for the respect, protection, and fulfilment of human rights and fundamental freedoms, and the effective exercise of state power, the 2010 Constitution can only be amended per its provisions. Thus, a constitutional change is necessary where there is a need to improve democratic good governance or adjust to positive legal, historical, political, socio-economic, and cultural transformations. The Constitution dedicates Chapter 16 (Articles 255, 256, and 257) to its amendments through parliamentary and popular initiatives. The tenth constitutionversary on 27 August 2020 was marked with a heated debate amongst Kenyans and the political and legal circles regarding the (un)constitutionality of the Constitution of Kenya (Amendment) Bill 2020. This constitutional amendment Bill has been termed as a ‘device for political cease fire’ due to its background following the disputed 2017 regular presidential election in which the KESC annulled the incumbent President Uhuru Kenyatta’s initial re-election victory. This was followed by the boycotting of the re-run by the key challenger- Raila Odinga, and his subsequent mock swearing-in as the ‘People’s President’ by the controversial lawyer Miguna Miguna, leading to protracted mass protests. This Bill was one of the more than 22 unsuccessful attempts to amend the 2010 Constitution since its promulgation........................................................................ This study critically analyses the central place of the Kenyan people in constitutional amendments from a descriptive or prescriptive, analytical or argumentative and comparative approach. The practice, emerging jurisprudence from the superior courts, comparative jurisprudence, and scholarly literature from foreign jurisdictions including South Africa and India provide instructive lessons for Kenya as far as constitutional amendments are concerned.