“We the people:” On Popular Participation and the Making of the 2010 Constitution of Kenya

Kenya’s 2010 constitutional project was predicated on the need to tackle almost fifty years of presidential authoritarianism entrenched through fundamental amendments to the 1963 independence Constitution. Attempts to whittle down presidential power were met with brutal force orchestrated by successive administrations of the ruling party, KANU. The 2002 opposition victory did not yield a constitution as the coalition partners took opposing views on key aspects of the draft constitution. Without a constitution, the country went into the 2007 election. Widespread violence and deaths ensued after that election which triggered the process of the making of the 2010 Constitution. The philosophical underpinning of the constitution-making process was that the people of Kenya would fully participate in the formation of their constitution. This article examines the legislative architecture of the constitution-making process with a view to exploring the magnitude of the participation of the people. In this vein, the article investigates the legitimacy of Kenya’s constitution-making enterprise. This article finds that the 2010 constitution-making process was fundamentally flawed, which, consequently, renders the 2010 Constitution of Kenya illegitimate. DOI: 10.5901/mjss.2014.v5n20p8