REFLECTIONS: Read Karl E Klare Legal culture and transformative constitutionalism 14(1998) South African Journal of Human Rights 146 and discuss: what does transformative constitutionalism entail in the Kenyan context? How does the bill of right foster this transformation project?
The Kenyan Constitution, Origin and Background
That part of the Constitution that is truly owned by and which defines the citizen is the bill of rights. The bill of rights sets out limits on legitimate state authority and action vis a vis the individual and between private citizens.
Conversely, the bill of rights declares and defines citizenship and thus permissible citizen space, autonomy and freedom. After the citizen cedes power to his/her government to rule, the citizen reserves certain rights for himself/herself in the bill of rights. These must be inviolable if the constitution-the general agreement or contract- and the citizen are to be adequately protected in any society.
Justice Jackson noted this as follows:
The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.
Ones right to life, liberty and property, to free speech, a free press, freedom of worship and assembly and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.
(West Virginia State Board of Education v. Barnette, at p. 638).
The Court of Appeal addressed itself on the value attached to our Bill of Rights in the case of Attorney General v Kituo cha Sheria & 7 others  eKLR, stating;
the Bill of Rights in Kenyas constitutional framework is not a minor peripheral or alien thing removed from the definition, essence and character of the nation.
Rather, it is said to be integral to the countrys democratic state and is the framework of all the policies touching on the populace. It is the foundation on which the nation state is built. There is a duty to recognize, enhance and protect the human rights and fundamental freedoms found in the Bill of Rights with a view to the preservation of the dignity of individuals and communities . rights have inherent value and utility and their recognition, protection and preservation is not an emanation of state largesse because they are not granted, nor are they grantable, by the State. They attach to persons, all persons, by virtue of their being human and respecting rights is not a favour done by the state or those in authority. They merely follow a constitutional command to obey.
A bill of rights then may be perceived as a sum-total of those rights citizens win and realise incrementally. In this sense a bill of rights will also define a countrys constitutional, political and socio-economic development. Article 19(1) of the Constitution stipulates that [t]he Bill of Rights is an integral part of Kenyas democratic state and is the framework for social, economic and cultural policies. Where citizens win substantial human rights, the bill of rights will reflect more freedom in the society. Article 19(2) of the Constitution stipulates as follows in this regard [t]he purpose of recognising and protecting human rights and fundamental freedoms is to preserve the dignity of individuals and communities and to promote social justice and the realisation of the potential of all human beings. Post-independence African political leaders see a bill of rights as a necessary evil in the independence constitutions; an irritant that qualifies their power. These leaders view the bill of rights very much as analogous to a non-core contractual term in a standard contract which can be ignored. This brand of leadership does not see the bill of rights as the true source of the peoples power. This is the premise for enactment of Article 19(3)(a) that provides that: the rights and fundamental freedoms in the Bill of Rights belong to each individual and are not granted by the State.
Stages in the Development of Kenyas Bill of Rights
Just like the constitution, there is no society or community without a bill of rights. Hence before 1895, the communities within what was to become Kenya had their catalogue of human rights. Pre-independence societies had bills of rights enforceable inter-se the people, people and groups, a people and another people and people versus political and/or administrative authority. These rights could be similar and even identical inter se communities.
Some of these were: the right to belong to a family and clan and other groups; access to natural resources and especially land; right to culture; right to life; the right to welfare; the right to participate in public affairs especially by men, e.t.c.
It is wrong to assume that within pre-colonial Africa there was no constitutional or bill or rights tabula rasa. An examination of ancient Egypt, Sudan and the West African Empires, e.g. of Ghana, Songhai, Mali e.t.c. reveals constitutions and bills of rights very much like those that existed in pre-industrial revolution Europe were present in these states. Unfortunately, colonialism attempted to halt the autochthonous development of African institutions. For example, the bills of rights adopted at independence in the late 1950s and early 1960s had little indigenous content. Although these indigenous bill of rights values were largely untapped for the modern constitutional situation, they continued to co-exist side by side with the new values. This was to be replicated in most human and societal endeavours in the new order.
During the colonial period between 1895 and 1963, it is often thought that a bill of rights did not exist. However, members of the colonial administration enjoyed constitutional rights similar to those they would have enjoyed in Britain. Colonial settlers and other white people as early as the beginning of the twentieth century argued that a British citizen wherever he/she went travelled with the rights he/she had enjoyed in Britain. This argument together with the no-representation no-payment-of-tax argument led the colonial administration to extend rights to white people in the East Africa Protectorate and eventually the Kenyan colony. With passage of time Asians and Arabs also had a body of rights that they could enjoy. Only in the late 1950s did meaningful recognition of a universal bill of rights emerge. The point has therefore to be emphasised that the validity and legitimacy of human rights was recognised, but in racial terms, even during colonialism. As human rights for the majority were being denied, a minority enjoyed and exercised human rights.
During negotiations for independence, white settlers were at the forefront arguing for a bill of rights which would encompass all races and peoples. In particular, they sought for protection of minority rights and protection of property. The white settlers allied with the Kenya African Democratic Union (KADU) which represented elites from minority ethnic groups to argue for a constitutional settlement favourable to ethnic, racial and propertied minorities.
Essentially, the unfolding bill of rights was modelled on the 1948 United Nations Universal Declaration of Human Rights, the American Constitution but was largely influenced by the European Convention on Human Rights (1950).It protected standard civil and political rights but did not feature economic, social and cultural rights. It did not feature second and third generation rights coming as it did before the international covenants which gave flesh to human rights internationally. Also Kenya was a free market oriented country which could not have embraced economic, social and cultural rights as socialist countries did at that time.
The independence bill of rights especially between 1963-1966 commendably guaranteed in practice and law citizens human rights. However between 1967-1989 constitutional changes and judicial activity emasculated the independence bill of rights. This led to transgressions and rights violations by government functionaries. The agitation for Constitutional reforms were a reaction to the injustices perpetrated during this era where the bill of rights had almost been rendered useless leaving the citizenry without redress for violation of rights.
Kenyas 2010 Constitution is significantly different from its immediate predecessor. By 2010, the often amended independence Constitution was uninspiring. It was a purely legal document establishing institutions and listing rules. In Joseph Kimani Gathungu v Attorney General & 5 others  eKLR, Constitution Reference 12 of 2010, Ojwang J. (as he then was) remarked thus regarding these amendments:
Prior to the 27th August, 2010 Kenyas governance was based on the Constitution of 1969, which incorporated sweeping amendments effected over a five-year period, to the original Independence Constitution of 1963. I take judicial notice that, whereas the 1963 Constitution was an elaborate document marked by delicate checks-and-balances to public power, the 1969 Constitution had trimmed off most of these checks-and-balances, culminating in a highly centralized structure in which most powers radiated from the Presidency, stifling other centres of power, and weakening their organizational and resource-base, in a manner that deprived the electorate of orderly and equitable procedures of access to civil goods. Judicial notice is taken too of the fact that the Constitution of 2010 derived its character, by a complex and protracted law-making process, from the history of popular grievance associated with the limitations of the earlier Constitution.
The (heavily qualified) Bill of Rights in the Independence Constitution had been moved from the beginning (it was initially chapter 2) to much further back, to appear only after wordy chapters on the executive, legislature and judiciary. The message was clear: Rights were out of sight and the executive was in control. It is against this backdrop that the agitation for a new constitution in Kenya gained momentum.
Prof. Yash Pal Ghai in Chimera of constitutionalism: State, economy and society in Africa in explaining the contemporary surge in constitution making and the difficulties in implementing constitutions in many African countries observes that:
The primary reason for adopting new constitutions is the failure of governments to fulfil the promise of independence, or internal conflicts or serious economic crises that have beset these countries. These new constitutions therefore seek to solve several problems, of both state and society. In particular they aim to promote values and framework of nation building as well as to restructure the state. The perception has gained ground that without constitutionalism, these countries face massive problems of unity, solidarity, fair and effective administration, the protection of rights, and social and economic development. The constitution is then regarded as the basis of both state and society. The simultaneous pursuit of these objectives accounts for the ambitiousness of these constitutions, reflected in the scope and multiplicity of their purposes and the range and complexity of institutions.
The 2010 Constitution does the formal work a constitution is usually expected to do, establishing institutions, determining their mandates and their relationships, and prescribing the limits of their powers. But in stark contrast to the old Constitution, these provisions are set in an explicit normative framework which commits Kenya to constitutionalism and the rule of law and which asserts social justice and inclusiveness as national values. Article 2(1) provides that: This Constitution is the supreme law of the Republic and binds all persons and all State organs at both levels of government. While Article 2(4) provides that: Any law, including customary law, that is inconsistent with this Constitution is void and any act or omission in contravention of this Constitution is invalid. The national values and principles of governance as contained in Article 10(2) include human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalised amongst others. It is a constitution which seeks to reconstitute the nation in an inclusive political framework that recognises Kenyans as active citizens and values their diversity. The basic values that it embraces in both statement of principle scattered through the text and the Bill of Rights are to provide the basis of the kind of democracy described in the preamble: one in which, among other things, people are proud of their ethnic, cultural and religious diversity and aspire to a government based in the essential values of human rights, equality, freedom, democracy, social justice and the rule of law.
Transformative nature of the 2010 Kenyan Constitution
The concept of transformative constitutionalism was introduced in a discussion of the 1996 South African Constitution by Karl Klare in a seminal article Legal culture and transformative constitutionalism (1998) 14 SAJHR 146. Klare contends that for judicial adjudication to contribute to the transformative aspirations of the Constitution, there must be a rethink of the role of legal culture as well as a radical transformation of understandings and approaches towards legal interpretation. Klare defines transformative constitutionalism as: [a] long-term project of constitutional enactment, interpretation and enforcement committed to transforming a countrys political and social institutions and power relationships in a democratic, participatory and egalitarian direction. Transformative constitutionalism connotes an enterprise of inducing large-scale social change through non-violent processes grounded in law. According to Klare, transformative constitutionalism is aimed at the creation of a highly egalitarian, caring, multi-cultural community, governed through participatory, democratic processes in both public and private spheres. He thus envisions the constitutional project as encompassing both a vision of collective self-determination and a strong parallel vision of individual self-determination. The underlying motive for transformative constitutionalism is the need for change in the social, economic and political structures.
In Klares vision, for a constitution to engender transformative aspirations, it must contain a substantive (redistributive) conception of equality, entrench justiciable social economic rights, engender positive state duties to combat poverty and inequality as well as promote social welfare, must provide for both vertical and horizontal application of the constitution in general and the Bill of Rights in particular, engender participatory governance, entail multi-culturalism, be historically self-conscious, as well as envision transformative adjudication (i.e. the creation of a new role and responsibilities for the judiciary through the transformation of adjudicative processes and methods).
Transformative constitutionalism is also linked to Post World War II constitutionalism, that Lorraine E. Weinrib in The Postwar Paradigm and American Exceptionalism, in The Migration of Constitutional Ideas, ed. Sujit Choudhry (New York: Cambridge University Press, 2006), 89 describes as a post-war constitutional paradigm that would not merely define and stabilize the exercise of state power through majoritarian machinery but would give legal priority to equal citizenship and respect for inherent human dignity.
The long struggle for constitutional reform in Kenya was underpinned by two objectives. First, the reforms were intended to transform the political governance structures from authoritarianism to a culture of democratic decision-making where all exercises of public power was justifiable and aimed at the attainment of the common good. Secondly, reforms were aimed at the transformation of the classical liberal constitutional, (Klare defines a classical liberal constitution as that which is individualistic, highly protective of private property, exceedingly few socio-economic rights, few affirmative governmental duties, little horizontality, no communitarian or caring ethos, and no affirmative commitment to deepening of democratic culture) economic and social structures that entrenched endemic poverty and pervasive inequality, into an egalitarian, caring society based on substantive redistributive equality, dignity, freedom, respect for human rights, the attainment of social justice and the improvement of the living conditions of all Kenyans.
On 27th August 2010, a new Kenyan constitution was promulgated. It is a basis for complete transformation of law, economic and politics in Kenya. It imposes checks on the executive, which has up to now had enormous, unfettered power; it sets out principles of leadership and integrity that apply to all officers of the state; it introduces a system of devolved government; a bicameral parliament; provides a framework for land and judicial reform and an expansive Bill of Rights secures both civil and political and social and economic rights.
Then President Mwai Kibaki in his speech on the 27th August 2010 during the promulgation of the 2010 Constitution at Uhuru park stated thus:
This Constitution will fundamentally transform our nation politically, economically and socially. Some of the changes will be immediate and we must be ready to support them. Other changes will take time. We must remain resilient and focused as we work towards their fulfillment. The changes envisaged in the New Constitution will present some challenges along the way. However, the New Constitution gives us better structures of governance to address the challenges more efficiently. Our resolve to complete the journey of our nations transformation must remain firm.
This transformative nature has received judicial recognition in several decisions:
The Supreme Court in Speaker Of The Senate & Another V Hon. Attorney-General & Another & 3 Others  eKLR, Advisory Opinion Reference 2 of 2013at Para observed thus:
 Kenyas Constitution of 2010 is a transformative charter. Unlike the conventional liberal Constitutions of the earlier decades which essentially sought the control and legitimization of public power, the avowed goal of todays Constitution is to institute social change and reform, through values such as social justice, equality, devolution, human rights, rule of law, freedom and democracy. This is clear right from the preambular clause which premises the new Constitution on RECOGNISING the aspirations of all Kenyans for a government based on the essential values of human rights, equality, freedom, democracy, social justice and the rule of law.And the principle is fleshed out in Article 10 of the Constitution, which specifies the national values and principles of governance, and more particularly in Chapter Four (Articles 19-59) on the Bill of Rights, and Chapter Eleven (Articles 174-200) on devolved government.
Ojwang J (as he then was) has in underscoring the nature of the 2010 Constitution remarked in Joseph Kimani Gathungu v Attorney General & 5 others  eKLR, Constitution Reference 12 of 2010: