• This is a set of fundamental norms and principles that society has decided to govern or regulate itself.
• It includes all of the political system’s agreed-upon contents.
• It establishes the foundations of government.
•  A constitution is a public document that governs the State’s relations with its citizens and the State’s organs.
• It is a collection of the fundamental rules and principles a society has decided to control or regulate itself.
• It includes the political system’s agreed-upon contents.
• A constitution defines the essential framework of governance.
• The Kenyan Constitution serves as the foundation for all other laws.
• Any law that violates the Constitution is null and void.
• Article 2 (4) of the Constitution provides ” any other law inconsistent with the Constitution, the Constitution shall prevail, and the other law shall be void to the extent of the inconsistency”.
• Any inconsistent law can be passed if only the Constitution is first amended by the votes of not less than 65% of all the members of the National Assembly and supported by Presidential assent.

Issues Addressed in The Constitution Of Kenya

The Constitution of Kenya 2010 covers the following matters:-

 1. The sovereignty  of the people of Kenya:

• Meaning all powers are derived from the people.
• Therefore, the people of Kenya own all sovereign power, which they may exercise exclusively in line with this Constitution.
• Second, the people have the option of exercising their sovereign power directly or through democratically elected representatives.

2. The supremacy of the Constitution:

•  This Constitution is the Republic’s supreme law, binding all citizens and state entities at all levels of government.

3. The Republic:

• Declaration of the Republic.
• That Kenya is an independent state with an organized government.
• Kenya is a self-governing country.
• The Republic of Kenya is a multi-party democratic state founded on the national values and governance principles in Article 10.

4. Bill of rights:

• It contains fundamental rights and freedoms.
• Kenya’s democratic state is based on the Bill of Rights, which serves as the framework for social, economic, and cultural policy.
• Human rights and fundamental freedoms are recognized and protected to preserve the dignity of individuals and communities and promote social fairness and the realization of all human potential.

5. Citizenship:

• All about how one acquires and losses citizenship.
• Entitlements of citizens.
• Every citizen has the right to:-

1. Citizenship’s rights, advantages, and benefits, subject to the limitations imposed or permitted by this Constitution;
2. Kenyan passport, as well as any other registration or identification document granted by the government to citizens.

6. Leadership and integrity :

• Under chapter six of the Constitution, i.e., how morals play a central role in leadership.
• This means that Kenyans determined in the Constitution that people whose conduct does not bring honor, public confidence, or integrity have no position in government management.

7. Representation of the people:

•  In governance, representation is a mechanism or procedure that allows citizens, or some of them, to form legislation and government policy through elected representatives.

8. Devolved governments:

• There is a central and county government.
• Devolution is the statutory delegation of powers from a sovereign state’s central government to county governments.
• It’s an example of administrative decentralization in action.
• Devolved regions have the authority to enact legislation relevant to their territory, giving them more autonomy.

9. Matters of public finance:

• All about public finance principles.
• The following principles will guide all aspects of public finance in the Republic:-

1. There must be transparency and accountability, as well as public participation in financial affairs;
2. The public finance system must promote social equity.
3. The costs and rewards of using resources and borrowing from the government must be divided evenly among current and future generations;
4. Public funds must be spent prudently and responsibly; and
5. Financial management must be accountable, and fiscal reporting must be transparent.

10. Amendment of the Constitution:

•  A proposed constitutional change must be passed according to Article 256 or 257 and supported by a referendum under clause (2).

11. Land And Environmental Protection:

• Land in Kenya shall be held, used, and managed in a manner that is equitable, efficient, productive, and sustainable, and in accordance with the following principles:-

1. Land resource management that is both sustainable and productive;
2. Equitable access to land;
3. Land administration that is transparent and cost-effective;
4. Conservation and protection of ecologically vulnerable regions in a responsible manner;
5. The elimination of gender discrimination in land and property law, conventions, and practices; and
6. They are encouraging communities to resolve land disputes through established local community initiatives per the Constitution.

• These principles will be implemented by legislation and a national land policy formulated and reviewed regularly by the government.

12. The Legislature:

• The Institution And Role Of Parliament.
• The Kenyan Parliament, consisting of the National Assembly and the Senate, is created.
• The National Assembly and Senate shall carry out their duties in conformity with this Constitution.

13. The National Executives:

•  Principles and Structure of the National Executive.
• Executive power is delegated by the Kenyan people and must be exercised in conformity with the Constitution.
• Organizational management must be utilized consistent with the idea of service to Kenya’s people and for their well-being and benefit.

14. Judiciary. 

• Judicial Authority and Legal System were established.
• The people delegate judicial power to the courts and tribunals established by or under this Constitution, and it is to be exercised by them.

15. The Public Service Commission:

• The Public Service Commission consists of a chairperson, a vice-chairperson, and seven other members appointed by the President with the approval of the National Assembly.

16. National Security:

• National security refers to the safeguarding of Kenya’s territorial integrity and sovereignty and its people’s rights, freedoms, property, peace, stability, and prosperity, as well as other national interests, from both internal and external threats.

Supremacy of the Constitution 

Supremacy of the Constitution is provided for under Article 2. And states the following:-

1. This Constitution is the Republic’s supreme law, binding all citizens and government entities at all levels.
2. Except as expressly authorized by this Constitution, no one may claim or execute State authority.
3. No court or other State organ may contest the Constitution’s legitimacy or legality.
4. Any law, including customary law inconsistent with this Constitution, is null and void to the extent of the inconsistency, and any conduct or omission that violates this Constitution is invalid.
5. Kenya’s law shall incorporate the general standards of international law.
6. Under this Constitution, any treaty or convention that Kenya ratifies becomes part of Kenyan law.

Classifications of the Constitution

Constitutions may be classified in various ways:-

1)Written and Unwritten:

• An unwritten constitution does not have a single document containing all of the provisions of the Constitution.
• Instead, this form of Constitution is written in part and spoken in the region.
• An unwritten constitution, like common law and customary law, emerges from many years of practical experience and the people’s political philosophy.
• A written constitution is included in a single document and can be quickly obtained and consulted on any subject.
• Because of the inconvenient nature of amending a written constitution, it is usually strict.
• It can, however, be changed if it is proven to be required.

2)Rigid and Flexible:

• A flexible constitution can be updated or changed without going through a lengthy process.
• Instead, a simple majority of the members of the parliament can alter this form of the Constitution, just like any other statute.
• A rigid constitution is a form of a Constitution with lengthy or burdensome modification procedures.
• The procedure for amending a strict constitution differs from creating and revising ordinary laws of the land.

3)Unitary and Federal Constitution:

• A unitary constitution stipulates that political powers should be concentrated on a single central authority that does not share abilities with other leaders in the country and instead delegates powers to regional, local, and other subordinate entities.
• To put it another way, in a unitary constitution, all government authorities are concentrated in the central or national government, which is the sole source of power.
• A federal system of government, on the other hand, is an association of free states in which power is constitutionally shared among federal, state, and local governments, with each tier performing its constitutionally given rights and functions.
• On the other hand, a federal constitution establishes different government structures at the national, state, and local levels, each with its own set of constitutionally allocated powers and responsibilities.

4)Republican and Monarchical Constitution:

• A republican constitution establishes the position of President, an elected head of State who serves for a specified period of office.
• A monarchical constitution is a dynasty in which the monarch is succeeded by their children or other heirs from generation to generation or from one reigning family to the next.
• To comprehend a monarchical constitution, it is necessary first to grasp what a monarchy is: a government led by a King, Queen, or Emperor.

5)Presidential and Parliamentary:

• A presidential constitution vests all executive powers in a president who serves as the head of state and government.
• The President may use the executive management of government personally or through the vice president, ministers, and other officials in the country’s public service.
• The President’s powers include upholding the Constitution and enforcing all legislation passed by the legislature at the time.
• A parliamentary constitution is a type of Constitution in which the government’s executive responsibilities are vested in a Prime Minister, the head of government, and the majority party, but not the head of State.
• In countries with this form of Constitution, the only ceremonial head of state is a monarch, or a president, the figurehead, the symbol of the State, and the Father or Mother of the Nation, depending on the situation.

6)Democratic Constitution:

• The word “democracy” is made up of two Greek words: “Demos,” which means “people,” and “kratia,” which means “rule” or “government.”
• Democracy is a form of government in which the people participate directly or through representatives.
• A truly democratic government must be made up of the people’s representatives or the generality.
• It must also be a people-formed and installed government.

The Kenyan Constitution

• Kenyan Constitution is written.
• It was enacted by the English parliament in 1963 to grant Kenya independence and promulgated in 2010.
• It has been amended many times.
• Section 3 (1) (a) of the Judicature Act recognizes the Constitution as a source of the law of Kenya.
• It is the fundamental law of the land and prevails over all other rules.
• Therefore, it is the supreme law.

Some of the rights and freedoms available include:-

1)Right to life:

•  Every individual has a right to life.
• A person’s life begins at conception. Except as authorized by this Constitution or any written law, no one should be intentionally deprived of life.
• Therefore, abortion is not permitted unless, in the opinion of a skilled health practitioner, there is a need for emergency care, the mother’s life or health is in jeopardy, or if otherwise approved by law.

2)Equality and freedom from discrimination:

• Every person is equal in the eyes of the law and is entitled to the same protection and benefit of the law.
• Equality entails the complete and equal enjoyment of all fundamental rights and freedoms.
• Equal treatment is guaranteed to men and women, including equal political, economic, cultural, and social arenas.

3)Human dignity:

•  Every individual possesses basic dignity and the right to have it acknowledged and protected.

4)Freedom and security of the person:

• Every individual has the right to personal freedom and security, which includes the right not to be:-

1. Arbitrary or without justification deprivation of liberty;
2. Detained without charge or trial, unless a state of emergency exists, in which case detention is subject to Article 58;
3. Exposed to any violence, whether from the government or the private sector;
4. Being subjected to any form of torture, whether physical or psychological;
5. Punished with physical force; or
6. Treatment or punishment that is cruel, inhumane, or degrading.

5)Slavery, servitude, and forced labor: 

• No one shall be subjected to slavery or servitude.
• No one shall be compelled to do forced labor.

6)Privacy:

• Every individual has the right to privacy, which includes the right not to have their person, home, or property searched; their goods confiscated; information about their family or private matters unduly required or divulged, and the privacy of their communications invaded.

7)Freedom of conscience, religion, belief, and opinion:

• Every person has the right to religious freedom and the freedom of thought, belief, and opinion.
• Every person has the freedom to express any religion or belief through worship, practice, teaching, or observance, including the observance of a day of worship, whether alone or in a community with others, in public or in private.
• A person’s access to any institution, employment, or facility, as well as the enjoyment of any right, cannot be denied because of his or her religious beliefs.

8)Freedom of expression:

• Every individual has the right to freedom of speech, which includes:-

1. The freedom to seek, receive, or transmit information or ideas;
2. Artistic creativity; and
3. Academic freedom and scientific research freedom.

9)Freedom of the media:

• The freedom and independence of electronic, print, and other types of media are guaranteed.
• However, this does not include any of the expressions mentioned in Article 33. (2).
• The State shall not:-

1. Exert control over or interfere with any person engaged in broadcasting, the production or distribution of any publication, or the dissemination of information by any medium; 
2. Penalize any person for any opinion or view, or the content of any broadcast, publication, or dissemination.

10)Access to information:

• Every citizen has the right to access:-

1. Information held by the government; and
2. Information held by a third party that is necessary for the exercise or protection of any right or basic freedom.
3. In addition, every person has the right to have inaccurate or misleading information about them corrected or removed.

11)Freedom of association:

• Every person has the right to freedom of association, including organizing, joining, and participating in any organization.
• A person may not be forced to join any form of organization.

12)Assembly, demonstration, picketing, and petition:

• Everyone has the freedom to assemble, demonstrate, picket, and present petitions to public officials in a peaceful and unarmed manner.

13)Political rights:

• Every citizen has the right to make political decisions, including the right to:-

1. Form, or participate in the formation of, a political party;
2. Participate in, or recruit members for, a political party; or
3. Advocate for a political party or cause.

14)Freedom of movement and residence:

• Everyone has the right to move about freely.
• Kenyans have the right to depart at any time.
• Every Kenyan citizen has the right to come, stay, and live anywhere in the country.

15)Protection of right to property:

• Under Article 65, every person has the right to acquire and own property:-

1. Of any sort; and
2. In any part of Kenya; either individually or in combination with others.

16)Labor relations:

• Every person has the right to fair labor practices.

17)Environment:

•  Every person has the right to a clean and healthy environment, which includes safeguarding the environment for the benefit of current and future generations through legislation and other measures, such as those outlined in Article 69.

18)Economic and social rights:

• Every person has the right to:-

1. The highest attainable standard of health, which includes the right to health care services, including reproductive health care;
2. Accessible and adequate housing, as well as reasonable sanitation standards;
3. To be free of hunger and to have sufficient food of acceptable quality;
4. Clean and safe water in adequate quantities; and
5. Social security.

19)Language and culture:

• Every person has the right to speak and participate in the language and culture of their choice.
• In addition, a person who belongs to a cultural or linguistic community has the right to:-

1. Enjoy the person’s culture and use the person’s language with other members of the community; or
2. Form, join, and maintain cultural and linguistic associations and other civil society organs with other members of the community.

20) Family:

• The family is society’s natural and essential unit and the necessary foundation of social order, and it ought to be recognized.
• Every adult has the legal right to marry a person of the opposite sex with the parties’ free consent.

21) Consumer rights:

• Consumers have the right to:-

1. Good quality goods and services;
2. The information they need to get the most out of those goods and services;
3. Protection of their health, safety, and economic interests; and
4. Compensation for loss or harm caused by flaws in goods or services.

22)Appropriate administrative action:

•  Every individual has the right to prompt, efficient, lawful, reasonable, and procedurally fair administrative action.
• If an individual’s right or fundamental freedom has been or is likely to be harmed due to administrative action, the individual has the right to written reasons for the action.

23)Access to justice:

• The State must ensure that everyone has access to justice, and if a price is required, it must be reasonable and not obstruct access to justice.

24)Rights of arrested persons:

• An arrested person has the right to:-

1. Be informed promptly, in a language that the person understands, of (a) the reason for the arrest; (b) the right to remain silent; and (c) the consequences of not remaining silent;
2. To remain silent;
3. To communicate with an advocate and other persons whose assistance is required;
4. Not to be compelled to make any confession or admission that is not necessary; and
5. Not to be compelled.

25)Fair hearing:

• Any disagreement that can be addressed via the application of the law has the right to be heard in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or authority.

26)Rights of persons detained, held in custody, or imprisoned:

• A person who is detained, held in custody, or imprisoned under the law, retains all the rights and fundamental freedoms in the Bill of Rights, except to the extent that any particular right or fundamental freedom is incompatible with the fact that the person is detained, held in custody or imprisoned.