| Summary: | This thesis examines the evolving ideal of popular participation in the context of Kenya's
experience in the intertwined areas of political governance and constitution-making. The
thesis is primarily motivated by the spirit and intent of the country's constitution-making
initiatives which commenced in earnest after the 2007 post-election violence in which about
1,300 precious lives were lost, over 300,000 people displaced and property destroyed.
The study adopts a qualitative approach. This method enabled the researcher to view
phenomenon in its context, therefore making the enquiry more exhaustive. Unstructured
interviews were also conducted with personalities quite conversant with Kenya's democratic
trajectory. Key in this thesis is a hermeneutic or textual analysis of the relevant constitutional
and legislative materials and court decisions on the same. tn this regard. South Africa's
experience on the ideal of popular participation was illuminating in view of its wealth of
jurisprudence on popular participation ushered in 1994 by its post-apartheid constitutional
order.
The aim of the 2010 constitution-making process, underpinned by the Constitution of Kenya
Review Act 9 of 2008, was that the people of Kenya would be involved in the making of
their own constitution, and also participate in the management of the apparatus of state. The
paradigm shift in the country's political and constitutional map was imperative because, since
independence from Britain in 1963, Kenyans have experienced deplorable governance
characterised by the personification of power by the presidency, dissipation of the doctrine of
separation of powers and violation of the rule of law. This scheme was executed through a
mutilation, as shown in the study, of the architecture of the L963 Constitution. The new
constitutional project was therefore intended to transition Kenya from a representative
democracy, which had all the hallmarks of a failed system, to a participative democracy.
The thesis therefore demonstrates that Kenya 's dismal governance record cannot be separated
from the peoples clamour for constitutional reforms. It is on this basis that the thesis
examines the 2010 constitution-making process and key provisions of the Constitution. The
aim is to evaluate the extent to which the constitution-making process and the substance of
the Constitution, deal with the over-arching ideal of popular participation and this is the
central research question of the study.
The conclusion derived from a thorough investigation of these cardinal issues in Kenya 's
democratisation initiatives is that Kenya's 2010 constitution-making process did not
significantly embrace the noble ideal of popular participation. Second, the 2010 Constitution
does not substantially and fully incorporate one of the key aims of the review process which
is the participation of the people in the management of the affairs of state. Therefore, the
hypothesis of this study is that Kenya's 2010 constitutional project does not significantly
embrace the ideal of popular participation. In this regard, the main findings of this thesis are
that:
• The process of the 2010 constitution-making was fundamentally flawed.
• The 2010 Constitution lacks legitimacy.
• The 2010 Constitution does not significantly espouse the ideal of popular
participation in the management of the affairs of state.
The thesis therefore makes these key proposals to reform the existing law:
• The process of constitution-making should be commenced denovo for the people of
Kenya to truly consider themselves the owners of their own Constitution.
• Pending the commencement of a fully people-driven constitution-making, and due to
the complex nature of constitution-making, the thesis recommends, among others, the
enactment of legislation to operationalise certain provisions of the Constitution, in
particular. people's involvement in law-making at a national level. Reforms which
would enhance transparency and probity in governance should also be adopted,
including the enactment of legislation to realise the constitutional right of access to
information and the protection of witnesses by an independent agency.
• The thesis thus contributes to the profound need of transforming Kenya's
constitutional and political trajectory from a representative democracy to one in
which the phrase, ''We the people," in the Preamble to the Constitution, would be a
reality. It is also hoped that this approach would preserve and enlarge freedom which
the great jurist, John Locke, said is the end of the law. In addition, the thesis
recommends that the security of tenure of the Attorney-General should be restored as
that would enhance any resolve by the Attorney-General to institute civil proceedings
for the recovery of public resources lost through impunity and corruption perpetrated
by successive regimes.
In addition to the foregoing contribution, it is hoped that the thesis makes a modest
contribution to the improvement of the spirit and ambition of Kenya's constitutional review
project. It is also hoped that the study will provoke debates, further research and development
of discourses on the emerging constitutional direction. This would include:
• The role and place of "experts," in constitution-making and or review. This is
motivated by the role played by the Committee of Experts (CoE), one of the central
organs in the 2010 constitutional review process. Research would, probably,
investigate whether the CoE exceeded its statutory mandate by partially converting
itself into a constituent assembly and therefore an investigation of the legitimacy of
anything done ultra vires the Review Act.
• Questions on the need and usefulness of the two-chamber legislature under the new
Constitution, considering that this new structure is not a bi-cameral legislature. This
enquiry would also dwell on whether Kenyans are now "over-represented."
• The suitability of ad hoc courts, like Kenya's Interim Independent Constitutional
Dispute Resolution Court (IICDRC), in the determination of constitutional review
disputes.
• The new and powerful role of Parliament viewed against the background of inherent
fissures in Kenya's political parties. === Thesis (PhD) North-West University, Mafikeng Campus, 2012
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