Judicial Intervention in Kenya's Constitutional Review Process

The constitutional reform process in Kenya, which culminated in the promulgation of a new constitution in August 2010, has been a subject of much study and scholarly deliberation. That it ended on a rather positive note as compared to those in Zambia, Malawi, and even Zimbabwe, is seen by many as proof that Africans could, after all, redesign their constitutional frameworks to weed out moribund structures and entrenche systems of democratic governance. But the Kenyan experience also indicates a rather unfortunate trend where constitutions are never allowed to grow or mature with statehood. Instead, they are replaced whenever a new wave of political thinking abounds or dissatisfaction with the so-called ―ancient regimes‖ gathers sufficient momentum to upset the status quo.

Considering that stable democracies in the western world rarely overhaul their constitutions, this trend is an indictment of the efforts to consolidate constitutionalism and establish a tradition of respect for the rule of law in the continent.