Toward a People-Driven Constitution: Opportunities, Constraints, and Challenges of the Kenyan Example

Abstract

In the last two decades in Africa, a wave of democratization swept across the continent, where over fifty-seven new constitutions were adopted (Wing, 2008). However, these new constitutions did not translate into increased democratic space for the citizens. The failure of new constitutional dispensation to translate into tangible progress in improvement of governance in some countries such as Egypt raises pertinent questions. Why have Africa’s constitutions failed or proved to be largely ineffective? The answer seems to lie more in the process (how) than the product (constitution itself). Success, in this respect, lies not so much in reformulating the rules that govern society through writing new constitutions, but on the process of establishing governmental and institutional legitimacy. The persistence of poor governance in spite of many decades of constitution making buttresses the view of the existence of “constitutions without constitutionalism” in Africa (Ihonvbere, 2003). Constitutions often reflect elite interests, as it is often a product of elite capture. This brings with it a focus on civil society advocacy for a “people-driven” constitution-making process, with particular attention to their experiences of (non) participation, as well as their understanding and mobilization of broader “popular participation,” in the process (Hayward, 2010). It is in this context that this chapter explores the challenges of constitution making in Kenya.