THE KENYAN BILL OF RIGHTS AS LIBERTARIAN BUBBLES

Strathmore Law Journal

Reviewed by Eric Kibet* L umumba and Franceschi's The Constitution of Kenya, 2010: An Introductory Commentary is an indispensable handbook for readers striving for an exhaustive mastery of Kenya's Constitution, and anyone wishing for a quick reference. It is carefully analysed, well annotated and presented in an easy-to-read fashion. Authored by two distinguished legal scholars, the tone of the book demonstrates a thorough understanding of the socio-political situation in Kenya, the aspirations of its people as well as the vision and purposes of the 2010 Constitution. Kenya's Constitution is transformative as the Supreme Court and other superior courts of record have frequently acknowledged. 1 It seeks to ordain a transition from past ethical crises, repression, despotism and highly centralized governance to renewed ethical values, democracy, respect for human rights, revitalized institutions, devolution and accountability in government. 2 In short, it mandates social and political transformation through law. Karl Klare, writing about transformative constitutionalism in the South African context identifies legal culture as a threat to law-mandated social and politi-1 See for instance Speaker of the Senate & another v Hon.

2018

On 27 August 2010, Kenyans ushered in a new constitutional dispensation, ending a long and winding chapter in the country's bloody constitutional reform struggle. Commentators have hailed the Constitution as one of the most progressive in the world. Such high rating is founded on among other things, the constitutional architecture for recognition and protection of human rights and fundamental freedoms. This article takes an inventory of the gains in this particular respect.

2014

The scope of the Constitution of Kenya, 2010 goes far beyond the traditional understanding that a Constitution structures the relationship of government. It disabuses the Kenyan legal culture of a distinction between public and private law. The scope of the Bill of Rights is comprehensive, as article 20(1) of the Constitution makes plain, many of the rights envisaged in the Bill of Rights bind private individuals and corporations, as well as the state. Article 20(2) provides a textual pointer that depending on the nature of the right in question, private individuals may not be bound by the Bill of Rights in some circumstances. On the other hand, Article 20 (3) of the Constitution enjoins courts to develop the law to give effect to a right or fundamental freedom. While Article 10 of the Constitution introduces a normative value system upon which the Kenyan society must be ordered. This leads to the assertion that the Bill of Rights has a pervasive reach beyond the traditional vertica...

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

This paper is an analysis of articles 32 (freedom of conscience, religion, belief and opinion), articles 33 (freedom of expression) and article 34 (freedom of media) under Chapter 4 (Bill of Rights) of the Constitution of Kenya. The aim is to identify international human rights instruments from which these articles' provisions were borrowed and domesticated. The questions to be answered are: (1) Which international human rights instruments contain provisions similar to articles 32, 33 and 34 of the Constitution of Kenya? (2) What are the exceptions when trying to claim the right to these freedoms? (3) What is the role of media in entrenching these freedoms and provisions? In addition (4), what are some cases in Kenya that relate to these provisions or their violations and how has media handled them? This being an analytical paper, the data collection was based on archival records (of media reports and investigative documentaries) where the main document is the constitution of Kenya. The Inter-pretivist approach is used to get sense and meaning of the selected articles of the constitution of Kenya. The paper demonstrates that the Kenyan constitution is a hybrid of various IHR instruments making it among the best law of the land, especially on the bill of rights. Like any other bill of rights provisions, the KBR has limitations that individuals and institutions need to understand in order to enjoy the provisions of the analyzed articles. It was also demonstrated that the media has the highest obligation, as a cultural institution to not only inform and educate the populace about the constitution but more on advocating for the adherence of the provisions by state organs and other institutions in the land as demonstrated by especially investigative reports of human rights violations in Kenya. INTRODUCTION The Constitution of Kenya, promulgated in 2010, was as a result of a long journey and quest for a Constitution since independence. Although the Constitution is domesticated with rich laws " of the soil " , it can be referred to as a hybrid of international legal instruments. The Constitution has been lauded for containing the most elaborate bill of rights, encased in its Chapter 4. Most, of the provisions in the bill of rights are either directly or indirectly borrowed from the international human rights instruments. This paper traces some of the articles (Articles 32, 33 and 34) in the bill of rights and their roots in the international legal instruments and shows the role of media in advocating for such rights and freedoms.

The constitution of Kenya, promulgated in 2010, was as a result of a long journey and quest for Kenya's own constitution since independence. Although the constitution is domesticated in the sense that it has elaborate laws "of the soil" it can be referred to as a hybrid of international legal instruments. For example, the constitution is lauded for containing the most elaborate bill of rights, encased in chapter 4: THE BILL OF RIGHTS. Most, and to say the least, almost all provisions in the bill of rights are directly or indirectly borrowed from the international human rights instruments. This paper focuses on articles 32 (freedom of conscience, religion belief and opinion), articles 33 (freedom of expression) and article 34 (freedom of media) under Chapter 4 (Bill of Rights) of the constitution of Kenya. The aim is to identify international human rights instruments from which these article provisions could have been borrowed from and domesticated in the Kenyan constitution. The questions to be answered are: 1) which international human rights instruments contain provisions as articles 32, 33 and 34 of the constitution of Kenya? 2) What are the exceptions when trying to claim the right to these freedoms? 3) What is the role of media in entrenching these freedoms and provisions? And 4)

2006