The Constitution as Supreme Law

🟢 Lite — Quick Review (1h–1d)

Kenya’s 2010 Constitution is the supreme law; nothing — not Parliament, not the Executive — stands above it. The Bill of Rights in Chapter Four guarantees nine specific rights enforceable against the state. Kenya operates three arms of government: Executive (President and Cabinet), Legislature (National Assembly and Senate), and Judiciary (courts led by the Supreme Court). Devolution created 47 county governments, each with an elected governor and assembly. The six sources of Kenyan law are the Constitution, legislation, common law, African customary law, Islamic law, and general rules of international law. Habeas Corpus (a writ requiring a detained person be brought before a judge) protects personal liberty. Exam pointers: questions often ask which arm does what, how many counties exist (answer: 47), or which Chapter covers rights (Chapter Four). Know that the 2010 Constitution replaced the 1963 Constitution and fundamentally restructured the state.

🟡 Standard — Regular Study (2d–2mo)

The Constitution as Supreme Law

Kenya adopted a new Constitution in August 2010 through a popular referendum. Unlike the Westminster system Kenya inherited at independence (where Parliament was sovereign), the 2010 Constitution establishes constitutional supremacy. Any statute, court decision, or government action inconsistent with the Constitution is void to the extent of the inconsistency. This shift is the single most important structural fact about Kenya’s legal system.

Chapter Four — The Bill of Rights

Chapter Four of the Constitution lists fundamental rights and freedoms including: the right to life, dignity, equality, freedom of expression, freedom of movement, privacy, fair labour practices, and the right to education. These rights bind all state organs and private persons. The ** Enforcement Mechanism** allows any person to petition the Constitutional Court or the Supreme Court to enforce a right.

Three Arms of Government

Arm	Head	Key Function
Executive	President	Implements laws, manages state
Legislature	National Assembly & Senate	Makes laws
Judiciary	Chief Justice / Supreme Court	Interprets laws, resolves disputes

The doctrine of separation of powers prevents any single arm from accumulating absolute authority. Checks include: Parliament can impeach the President; courts can declare legislation unconstitutional; the Executive cannot direct judicial decisions.

Devolved Government

The 2010 Constitution created a two-tier system: national government plus 47 county governments. Counties have exclusive functions (agriculture, health, county transport) and shared functions with national government. Each county has a governor, deputy governor, and county assembly.

Sources of Kenyan Law

The Sources of Law hierarchy runs: Constitution first, then legislation, then common law (imported English law received before December 1997), African customary law (validated by the Constitution), Islamic law (applied in civil matters for Muslims), and finally rules of international law.

Typical exam questions present a scenario — a government action, a detained individual, a county dispute — and ask students to identify the constitutional provision, the correct arm of government, or the applicable right.

🔴 Extended — Deep Study (3mo+)

Landmark Cases and Judicial Review

Kenya’s courts have exercised judicial review to invalidate government actions. * Registered Trustees of the Muslim Advisory Council v. Council of Imams* confirmed the constitutional status of Kadhis’ courts. Nairobi Legal Aid Group v. Rwanda (East African Court of Justice) tested cross-border rights. Students should know that the Supreme Court under Article 163 is the final appellate court and has original jurisdiction over presidential election disputes — a power it exercised dramatically in the 2017 presidential election nullification proceedings.

The Habeas Corpus Mechanism

Habeas corpus (Latin: “you shall have the body”) is a prerogative writ ordering a detainer to bring the prisoner before court to justify continued detention. It applies when: (a) a person is detained without trial, (b) detention is unlawful, or (c) fundamental rights under Article 29 (freedom from torture, cruel or degrading treatment) are violated. The Application is filed in the High Court. If granted, the detainee must be released or brought before a magistrate within 24 hours.

Common Mistakes Students Make

Confusing parliamentary sovereignty (the old 1963 system) with constitutional supremacy (the 2010 system). Kenya no longer follows the UK model where Parliament can make any law.
Misstating the number of counties — Kenya has 47 counties, not 8 provinces as under the old constitution.
Forgetting that African customary law is only applied where it does not conflict with the Constitution or written law (Article 2(4)).

Worked Example

Question: Parliament passes a law limiting free expression. A journalist is prosecuted under that law. Can the law stand? Answer: No. Article 34 guarantees freedom of expression. Under Article 2(4), the law is void to the extent it is inconsistent with the Constitution. The Judiciary (through the High Court or Constitutional Court) would strike it down. The Legislature cannot override Chapter Four.

Practice Prompts

Draft a flowchart showing how a bill becomes law in Kenya, noting which arm originates it and which approves it. Then identify where the President may decline to assent.
Compare the 1963 Constitution’s structure (executive president, single-chamber parliament, 8 provinces) against the 2010 Constitution’s structure, explaining three consequences of each difference for ordinary citizens.

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The Constitution as Supreme Law