What the 2010 Constitution Does

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The Constitution of Kenya 2010 is the supreme law of the land, promulgated on August 27, 2010, following the post-election crisis of 2007–2008. Article 2 establishes that the Constitution binds all persons and that any law or action inconsistent with it is void. Chapter 4 contains the Bill of Rights enforceable against both state (vertical application) and private persons (horizontal application). Devolution under Articles 174–200 created 47 county governments listed in the Fourth Schedule. The Supreme Court under Article 163 is the highest court with original jurisdiction over presidential election disputes. Amendment requires 20% electorate support, two-thirds of each House, and 75% of county assemblies. Key terms to memorise: Supremacy of the Constitution, Basic Structure Doctrine, Limitation Clause, and Separation of Powers.

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What the 2010 Constitution Does

Kenya abandoned the 1963 independence constitution after the 2007–2008 electoral violence exposed systemic governance failures. The new constitution introduced a dual system of government: national and 47 county administrations with distinct functions. The Fourth Schedule allocates responsibilities—national government handles defence, foreign affairs, and national planning, while counties manage health, agriculture, and local urban planning.

The Supremacy Clause (Article 2)

Article 2(1) declares the Constitution the supreme law. Crucially, Article 2(4) voids any legislation or state action inconsistent with the Constitution. This contrasts sharply with the parliamentary sovereignty model in UK law where Parliament is supreme. Kenyan courts can strike down statutes—a power confirmed in Michele Muthoni Njeru v. Republic (2013).

The Bill of Rights (Chapter 4)

Rights here are justiciable, meaning citizens can enforce them directly in court without needing a lawyer’s letter first. The Limitation Clause (Article 24) permits restrictions only when necessary, lawful, and proportionate. Rights include freedom of expression, access to justice, and equality. Horizontal application means private employers or landlords cannot violate these rights either.

Constitutional Amendment Thresholds

Amendments fall into two categories. Ordinary amendments need a simple majority in both Houses. Special amendments—those affecting county boundaries, the supreme status of the constitution, or the Bill of Rights—require 20% of the electorate signing a popular initiative, two-thirds vote in each House, and 75% of county assemblies ratifying within six months.

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Chapter 6: Leadership and Integrity

Beyond rights, the Constitution imposes obligations on state officers. Chapter 6 mandates that the President, Deputy President, Cabinet Secretaries, and county governors declare their wealth and avoid conflicts of interest. The Ethics and Anti-Corruption Commission (EACC) enforces these standards independently of the executive.

Judicial Architecture Under Article 163

The Supreme Court (Article 163) sits at the apex, followed by the Court of Appeal, the High Court, the Employment and Labour Relations Court, and the Environment and Land Court. The Supreme Court’s original jurisdiction over presidential election disputes was exercised in the landmark 2017 ruling Raila Odinga v. IEBC (2017), which validated President Uhuru Kenyatta’s re-election.

Common Exam Mistakes

Confusing parliamentary sovereignty (UK model) with constitutional supremacy (Kenyan model)—Parliament in Kenya cannot override the Constitution.
Forgetting that the Bill of Rights applies horizontally to private actors, not just vertically to the state.
Misquoting the amendment threshold—75% of county assemblies, not county governors.

Worked Example

A county assembly enacts a law capping hospital fees at KES 100. The national Parliament later passes a law setting fees at KES 500. Under Article 2(4), the county law is void for inconsistency with national legislation on health policy under the Fourth Schedule. The national law stands.

Practice Prompts

Advise whether Article 24 of the Constitution could justify temporary internet shutdowns during national elections. Consider necessity, lawfulness, and proportionality.
Distinguish between the original and appellate jurisdictions of the Supreme Court, citing relevant constitutional provisions.

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What the 2010 Constitution Does