Constitution-Making Dispute Resolution Mechanisms: Lessons from Kenya

This article examines the Constitution-making dispute mechanism in relation to the making of the 2010 of Kenya. What forcefully triggered the process of constitution-making was the 2007-2008 post-election violence which was brought to an end by the efforts of the Kofi-Annan dialogue and reconciliation initiatives. Of the several issues which required urgent attention so as to restore peace and order, the central item was the commencement of constitutional reforms which had stalled in the past. While the relevant statutory infrastructure in form of the Constitution of Kenya Review Act 2008 was established, the Act failed to address the manner in which disputes arising from the process of constitution-making would be settled in spite that at the time, the judiciary was generally an appendage of the executive. Later, an amendment to the Constitution was made which established the ad hoc Interim Independent Constitution Dispute Resolution Court (IICDRC). Notwithstanding the political climate then prevailing, there was no haste in the operationalization of the Court. After the Court commenced its work, it made some decisions which this paper considers a grave misdirection of the law thus denying itself an opportunity to fully determine the legitimacy of the draft constitution and thereby the 2010 Constitution of Kenya. The paper recommends that dispute settlement mechanisms and related matters should be fully integrated in constitution-making or reform enterprise