Constitutional Realism in Kenya

NAIROBI – At long last, Kenya is getting a new constitution, something that had eluded our country for decades, even though almost everyone knew that one was needed. That the referendum on the new constitution was voted upon so peacefully – only a few short years since my country was wracked by a violently disputed presidential election – is also worthy of celebration. By shunning violence, Kenyans demonstrated emphatically that we can settle our disputes peacefully.

Kenya’s pursuit of a new constitution has been long and painful. When President Mwai Kibaki first ran for election in 2002, he promised that, if he won, his government would deliver a new constitution within 100 days of taking office. Under the leadership of Yash Pal Ghai, a renowned Kenyan legal scholar whose international resumé includes helping countries like Afghanistan write their constitutions, the Kenyan National Constitution Conference commenced.

But 100 days later, there was no new constitution. Nor was there one 200 days later. Days turned into months, and months turned into years. By 2004, the constitutional review process had broken down, owing to major disagreements between Kibaki’s camp in the coalition government, and the rest of the country. The Constitution Review Committee was disbanded.

Following this failed attempt, Kibaki ordered Attorney General Amos Wako to author his government’s version of a new constitution. In 2005, Kibaki called a referendum to vote on Wako’s document. Kenyans rejected it.