Constituent power and Carl Schmitt's theory of constitution in Kenya's constitution-making process

Abstract

The decade-long constitutional reform process in Kenya spans two phases. The first ended with a High Court decision that the constitution-making process was unconstitutional because it failed to provide an opportunity for the exercise of constituent power by the Kenyan people. In the second phase Parliament sought to shield substantive questions of constitutional design from the reach of the constituent power. Drawing on Carl Schmitt’s constitutional theory, this article argues that although paradoxical, such treatment of the constituent power is theoretically coherent. Reading Schmitt’s theory closely reveals that, despite himself, Schmitt accepts limitation of the constituent power where the nature of law and liberal constitutionalism demand it. The article does not apply Schmitt’s constitutional theory, so much as read it against itself to suggest that it bears close resemblance to Fuller’s and Dworkin’s jurisprudence. At the same time, the article seeks to understand the Kenyan constitutional reform process, and ultimately questions whether the limitations placed on the constituent power in Kenya are consistent with theoretically acceptable limitations.