Editor’s Note: Today we publish the 2016 Report on Kenyan constitutional law, which appears in the larger 44-country Global Review of Constitutional Law, now available here in a smaller file size for downloading and emailing.
–Duncan Munabi O’kubasu, Director of the Centre for Jurisprudence & Constitutional Studies at Kabarak Law School
This brief review considers significant constitutional events in Kenya in 2016, with some spill over to the year 2017. Kenya has been a field of remarkable constitutional development since 2010, when it enacted for itself a new Constitution replacing the 1963 Independence one. The country has since been embroiled in constitutional interpretation, refinement, and implementation. Drafters of the 2010 Kenyan Constitution “decided not to decide” various points, so several constitutional articles end with a clause that Parliament should enact legislation to implement the Constitution. Kenya’s Parliament has engaged in massive enactment of legislation to give effect to various parts of the Constitution in the last six years, and courts have been involved in interpreting statutes and executive action under the authority of the Constitution. This review reports these developments by flagging the important ones, some of which started before 2016 but were a subject of settlement (judicial or otherwise) in 2016. Others will be subject to final determination in 2017, and as such are not, except for one, covered in the review.
II. The Constitution and the Court(s)
The Independence Constitution had been a subject of sustained “abusive constitutionalism.” It had been amended several times before 1992, which has worked to deprive it of a propensity to act as a tool of control or an incubator of democracy. After 1992, Kenya resorted to ad hoc constitutional review processes in the form of constitutional amendments and attempted constitutional revisions until 2008, when it was felt that the fruitions of such ad hoc measures were not a reliable and sufficient framework for democracy. In particular, whereas most of these reforms were directed at the electoral body and courts, substantive failure by the then electoral body, Electoral Commission of Kenya (ECK), to conduct free and fair elections coupled with a refusal by the then powerful opposition group, Orange Democratic Movement, to present its grievance to court over the 2007 general elections exposed the ineffectiveness of the ad hoc measures and consequently provided an impetus for urgent constitutional reform processes. These processes culminated in the Constitution of Kenya 2010 that sought not just to reform the judiciary and the electoral body but other (if not every) aspects of Kenya’s public regulation including human rights, institutions, public finance, land, and national security.
Regarding courts, Kenya does not have a specialized court to address constitutional matters called a “Constitutional Court,” as South Africa and Germany have. All the superior courts in Kenya (the High Court, Employment and Labor Relations Court, Environment and Land Court, Court of Appeal and Supreme Court) have the authority to make interpretations and determinations on the Constitution. Ordinarily, the High Court has the explicit original jurisdiction to (a) determine questions of violations of rights and also (b) interpret the Constitution. This jurisdiction is exercised either by a single judge or by an even number of judges (more than three) if the dispute concerns a novel point of law. A decision from the High Court can be appealed against to the Court of Appeal. The High Court at Nairobi in Kenya has a division designated to hear and determine petitions on human rights and constitutional matters. Other High Court stations can hear any petition—the arrangement in Nairobi is purely administrative.
At the apex of the judicial system is the Supreme Court. The Court has both original and appellate jurisdiction. It has original jurisdiction to determine (a) presidential elections and (b) request for advisory opinions at the instance of the national government, state organ or county government on a matter that concerns a county government. It does have appellate jurisdiction to hear and determine appeals from the Court of Appeal in cases of interpretation of the Constitution and in cases in which it or the Court of Appeal certifies a matter to be of general public importance- though a certification by the Court of Appeal can be reviewed or set aside. Thus, the Supreme Court is the court with the final authority on constitutional interpretation, but that authority can only be exercised if a matter falls within its jurisdiction.
III. Constitutional Controversies
There were two significant controversies in 2016- one purely political and another case based. The political one concerned the tenure of commissioners of the electoral body, the Independent Electoral and Boundaries Commission (IEBC). It started when opposition leaders called for the resignation of IEBC commissioners that presided over the 2013 general elections. The opposition circulated an article titled The Kenyan People’s Case against IEBC setting out their grievances against the electoral body and called upon Kenyans to attend (weekly) protests until the commissioners—and more so its then chair Ahmed Issack Hassan—vacates office. The government responded first by suppressing the protests through the security forces and the president declined at first to cede to the opposition demands requiring that the constitutional procedures be followed first. The opposition insisted and promised more protests, and following increased violence, deaths, and destruction of property, the commissioners resigned on their own and through a parliamentary initiative involving major political parties a process was set up to oversee their substitution.
However, the most pronounced controversy in 2016 was perhaps one that surrounded the succession of the Supreme Court judges, profiled as the “Retirement Age Cases.” The subject matter started around 2015 but became a subject of Supreme Court determination in 2016. It was principally a judicial dispute on when the judges of Superior Court should retire. The Judicial Service Commission, the constitutional agency responsible for the hiring of judges, issued retirement letters to some judges on the basis that they were about to get to 70 years which was the constitutional timeline for judges appointed under the new Constitution. The judges reacted by filing a number of Petitions at the High Court, the lead petition being Philip K. Tunoi & Another v. The Judicial Service Commission & Another. The main contention was about the lawful period of service of Superior Court judges who were already duly appointed and were in service under the repealed Constitution (the Constitution of Kenya 1969), and who then continued in service under the Constitution of Kenya, 2010. Supplemental to the dispute was a claim by the judges that their rights were being violated and that the Judicial Service Commission was breaching their legitimate expectations. At the High Court, the petition was heard by five judges. Dismissing it, the High Court held in summary that:
there was no violation of the constitutional rights and legitimate expectations of the Petitioners; the JSC had no mandate in determining whether the retirement age of judges in office on the effective date was seventy or seventy-four years as such mandate belonged to the Judiciary in the first instance; issuing retirement notices is the responsibility of the Judiciary; and the retirement age of judges in office on the effective date is seventy years.
The Deputy Chief Justice, Kalpana Rawal, was aggrieved by the decision of the High Court, as other judges were. She filed an appeal in the Court of Appeal, which was heard and determined by seven judges. It was also dismissed, and the Judges of the Court of Appeal held:
In the final analysis, we have reached the conclusion that on the whole, the High Court did not err in holding that the Constitution did not preserve and save the retirement age of judges prescribed by section 62(1) of the former Constitution as read with Section 9 of the Judicature Act and Section 31 of the Sixth Schedule to the Constitution, and that with effect from the effective date, the retirement age of all judges is 70 years. For these reasons, the appeal cannot succeed. It fails and is hereby dismissed.
Justice Rawal, the then Deputy Chief Justice, filed a notice of appeal, contemporaneously, with an application for a stay, staying the decision of the Court of Appeal, at the Supreme Court. The application for stay was heard by a single judge of the Supreme Court, Justice Ndungu, who allowed it and stayed the decisions of the Court of Appeal. The appeal to the Supreme Court had been filed just a few days before the then Chief Justice, Willy Mutunga, retired. Justice Njoki Ndungu had, in granting stay orders at the Supreme Court directed that the application be heard, inter parties, at a date that would be after the departure of the Chief Justice. The Chief Justice in turn, exercising his “administrative powers,” varied the orders that had been given by Justice Njoki Ndungu and gave directions that the application be heard on a priority basis.
When the applications were scheduled for a hearing, a private citizen, Okiya Omtata, who had been enjoined by the High Court as a party, filed a preliminary objection arguing that the Supreme Court did not have jurisdiction to hear the appeal that was to be filed at the Supreme Court and whose subject matter the applications were aiming to preserve. Five judges of the Supreme Court heard the preliminary objections, and the majority upheld it. The effect of upholding the preliminary objection was that the Supreme Court was conflicted and did not have jurisdiction to entertain the appeal, let alone to grant the orders that had been previously granted. The orders were set aside, and the Judicial Service Commission advertised for the positions of Deputy Chief Justice and judge of the Supreme Court.
IV. Major Cases
Because of succession at the Supreme Court, there were hardly any cases that were heard after the decision in the Rawal case. Chief Justice Dr. Willy Mutunga retired, and the Rawal case having had the effect of “removing” justices Rawal and Tunoi, both of the Supreme Court, there was no coram to hear any case. The process of hiring a new Chief Justice, as well as other judges of the Supreme Court, took time. There were, however, many other significant cases that were heard in the High Court and Court of Appeals involving interpretation and application of the Constitution and which had a far-reaching impact on the text and principles that undergird the Constitution, such as separation of powers, human rights, and foreign relations. Some of these are highlighted below.
A. Separation of Powers
The Constitution of Kenya embodies a rich symmetry of separation of powers at many levels. At the one hand, power is divided vertically between the national and county governments, and at another level it is divided horizontally between the judiciary, executive, and legislature. Even within the legislature, powers (and functions) are divided between the national assembly and the senate (both of which make up Parliament). The devolved government is also divided into county executives and county assemblies. Kenya currently has 47 counties, and thus also 47 county assemblies.
There have been legion disputes between national government and county governments over the exercise of powers (as well as privileges), some of which have been a subject of judicial determination in 2016. One of the most significant was International Legal Consultancy Group & another v. Ministry of Health & 9 others  eKLR. This case was about division of functions between the national and county governments in relation to health. It arose out of a decision by the national government, through the Ministry of Health, to procure certain medical equipment to be used in health facilities throughout the country. Citing the Inter-Governmental Relations Act 2012, the court, in that case, dismissed the petition that had been filed in the interest of county governments and observed that:
[T]he constitutional and legislative intent was to have all disputes between the two levels of government resolved through a clear process established specifically for the purpose by legislation, a process that emphasizes consultation and amicable resolution through processes such as arbitration rather than an adversarial court system. As a result, a separate dispute resolution mechanism for dealing with any disputes arising between the national and county governments, or between county governments, has been established.
Some other disputes have been on the relationship between the judiciary and the executive. Most significant in this regard was that of Law Society of Kenya v. Attorney General & Another  eKLR. This case was about the powers of the President to appoint the Chief Justice and the Deputy Chief Justice. Proceedings in that case were provoked by the enactment of the Statute Law (Miscellaneous Amendment) Act 2015 that sought to make minor amendments to various statutory enactments, including the Judicial Service Act 2011. Regarding the Judicial Service Commission Act, the bill sought to amend it to prescribe timelines for transmission of names to the President after recommendation by the Commission and most importantly sought to amend the provisions of section 30(3) of the Judicial Service Commission Act by requiring that the Commission submits names of three persons for appointment to the position of the Chief Justice and the Deputy Chief Justice. It had been contended that by allowing such amendments, the judiciary was going to be perceived by the public as an appendage of the executive and more importantly that the said amendments would achieve a collateral purpose of limiting the independence of the Judicial Service Commission and the judiciary, which collateral purpose was claimed to have been evidenced by the “fact that the amendments only affect the Chief Justice and the Deputy Chief Justice but not the Judges of the Court of Appeal and the High Court who are appointed in a similar manner.” The High Court, which heard the case, determined that:
To the extent that the amendments to section 30(3) of the Judicial Service Act compelled the Judicial Service Commission to submit three names to the President for appointment of the Chief Justice and the Deputy Chief Justice respectively, the said amendments violated the letter and the spirit of Article 166(1) of the Constitution.
B. Rights and Freedoms
In the year 2016, legion petitions involving violations of human rights were heard and determined by the High Court. The most significant was one that found its way to the Court of Appeal from the High Court: Kenya Airports Authority v. Mitu-Bell Welfare Society & 2 Others  eKLR. The appeal concerned justiciability and enforceability of socio-economic rights under the 2010 Constitution. Most pointedly, the case expressed the tension between the right to housing as a socio-economic right and the right to private property. The Court had to decide on the extent to which socio-economic rights can trump private property rights. A key feature in the appeal was the interpretation of the scope of the power of the High Court to grant appropriate relief as per Article 23 of the Constitution in cases involving the implementation of rights and fundamental freedoms.
Sometime around 1992, members of Mitu-Bell Welfare Society were relocated by the government to occupy and reside in a property belonging to Kenya Airports Authority. The residents then put up their slum dwellings, schools, and churches and established their businesses on the property and sought—in vain—the Commissioner of Lands to issue them title deeds to the portion of the appellant’s land that they occupied. In 2011, the Airports Authority placed a notice in the local daily newspapers giving the occupants and residents seven days to vacate portions of the suit property that they occupied. The notice also stated that upon expiry of the notice period, any buildings, installations, or erections thereon were to be demolished or removed and all activity was to terminate in the area.
The petitioners reacted by filing a case in the High Court, and the High Court held, inter alia, that any forceful eviction and or demolition without a relocation option is illegal, oppressive, and violates the rights of the petitioners. Also, that the respondent (state) was to provide, by way of affidavit, within 60 days, policies and programs for the provision of shelter and access to housing for the marginalized groups such as residents of informal and slum settlements. The state was further to furnish copies of such policies and programs to the petitioners, other relevant state agencies, and Pamoja Trust to analyze and comment on the policies and programs.
The state appealed against the decision in the Court of Appeal, which allowed the appeal arguing in part that “Under the political question doctrine and noting the provisions of Article 20(2) and 20 (5) (c) of the Constitution, a trial court should rarely interfere with a decision by a state organ concerning the allocation of available resources for progressive realization of socio-economic rights solely on the basis that it would have reached a different conclusion.” The CoA did, however, observe that “in any eviction, forcible or otherwise, adequate and reasonable notice should be given. Respect for human rights, fairness, and dignity in carrying out the eviction should be observed. The constitutional and statutory provisions on fair administrative action must be adhered to.”
C. Foreign, International, and Multilateral Relations
Republic of Kenya All War Heroes & Others v. Attorney General & Others  eKLR, though decided in January 2017, was an important case of the year 2016. In the Republic of Kenya All War Heroes & Others, the petitioners sued 97 respondents and named over 70 intended and or interested parties. The case also attracted six amicus curiae. The respondents and interested parties included former heads of states and governments, foreign embassies and diplomatic missions, international organizations, and individuals. The petitioners, however, encountered difficulties in serving some of the respondents, among them the United Stated Embassy, and sought an order from the Court to the Ministry of Foreign Affairs to help them effect service of the summons to the foreign missions/embassies, international organizations, and former heads of state and governments. In dismissing the application, the Court held that it would be:
Flouting international law and the provisions of the Privileges and Immunities Act and indeed the Constitution if it decrees or issues summonses in this case unless it is satisfied that the immunity has been waived.
The Court further added:
Article 32 of the first schedule of the Articles of Vienna Convention on Diplomatic Relations having the force of law in Kenya provides that the immunity from jurisdiction of Diplomatic agents and of persons enjoying immunity under article 37 thereof may be waived by the sending state and that such waiver must always be express.
D. Other Constitutional Developments
The other noteworthy constitutional development in Kenya concerned, seemingly, unsuccessful attempts of the Parliament and political fractions to amend the Constitution. The Constitution has not been amended since its adoption in 2010. Several amendment bills that sought to change that came in the year 2016 both from the National Assembly and Senate. These include: the Constitution of Kenya Amendment Bill (No 2) 2016 that proposed to reduce the number of county governments from 47 to 46 by reorganizing Nairobi County under the national government; the Amendment Bill (No 1) 2016, that sought to empower the Senate to increase the timelines for transfer of functions assigned to the county governments; Constitution of Kenya Amendment Bill seeking to amend Article 143 of the Constitution in order to extend the presidential immunities to the Deputy President not only because she performs sovereign functions but also because the Deputy President symbolizes Kenya’s sovereignty; and Constitution of Kenya Amendment Bill 2016, that sought to change the process of dealing with electoral disputes. Most significantly, a popular initiative to amend the Constitution, termed “Okoa Kenya,” collapsed after failing to gather the required threshold of a million signatures.
Kenya has been through interesting constitutional developments. The dissolution of commissioners of the electoral body was perhaps the happening that absorbed the nation and its resolution without an amendment to the Constitution demonstrated that (a) the Constitution is not the cause of institutional inefficacy in Kenya, and (b) amending the Constitution is not the panacea for political grievances and controversies. The Supreme Court succession for its part demonstrated – all through – that the Court as an institution was weak to the extent that it played to predictions that it would be divided 3:2, based on fairly known inter-judge “friendships,” creating an ugly impression that the Court was not impartial.
The foregoing notwithstanding, Court decisions on challenged parliamentary legislation as well as claims by individuals alleging human rights abuse evidences that the institution of judicial review has the potential to succeed in Kenya under the new Constitution. The 2010 Constitution bestowed on the citizens a duty to defend it and much legislation enacted by the Parliament has been a subject to judicial review because of individual initiatives. The Court has developed a policy, through jurisprudence, not to condemn such parties to pay costs of a petition in the event they lose and this policy has further encouraged judicial review.
 See Ben Sihanya, Constitutional Implementation in Kenya: Challenges and Prospects (2011).
 The phrase is extracted from Rosalind Dixon and Tom Ginsburg, “Deciding Not to Decide: Deferral in Constitutional Design” 9 International Journal of Constitutional Law (2011).
 See e.g. articles 9, 14, 15, 18, 21, 23, or 63.
 See generally David Landau, “Abusive Constitutionalism”47 UC Davis Law Review 189 (2013).
 See Yash Ghai and Jill Cotrell, “Constitution Building Processes and Democratization Kenya” available at http://www.katibainstitute.org/Archives/images/Constitution_Building_Processes_and_Democratization-Kenya.pdf accessed 20 April 2017.
 Such as repeal of its section 2A, of the then Constitution that paved way for multi-party democracy in 1991.
 See Rok Ajulu “Kenya’s 1997 Elections: Making Sense of the Transition Process” 14 (1) New Eng. J Pub. Pol. (1998).
https://www.hrw.org/reports/2002/kenya2/Kenya1202-01.htm (last visited 31 April 2016).
 Government of Kenya, Report of the Independent Review Commission, 2009.
 See e.g. Karuti Kanyinga and James D. Long, “The Political Economy of Reforms in Kenya: The Post-2007 Election Violence and a New Constitution,” 55 (1) 35, Afr. St. Rev. (2012).
 See Constitution of Kenya, Chapter 10.
 Constitution of Kenya, 2010 art. 162.
 Constitution of Kenya, 2010 art. 163.
 Art. 163.
 Standard Team, Raila Odinga, “Why we are holding mass protests against IEBC,”
available at https://www.standardmedia.co.ke/article/2000201969/raila-odinga-why-we-are-holding-mass-protests-against-iebc (accessed 20 April 2017).
 Judie Kaberia, “CORD vows to continue Monday protests against IEBC,” May 22, 2016, http://www.capitalfm.co.ke/news/2016/05/cord-vows-continue-monday-protests-iebc/ (accessed 20 April 2017).
 Nancy Agutu, “We will not allow destructive protests, Uhuru tells Raila,” The Star available at http://www.the-star.co.ke/news/2016/06/10/we-will-not-allow-destructive-protests-uhuru-tells-raila_c1367112
 Francis Gachuri, “IEBC commissioners agree to leave office on negotiated settlement,” https://citizentv.co.ke/news/iebc-commissioners-agree-to-leave-office-on-negotiated-settlement-135774/.
 Petition No. 244 of 2014. Others included Petition No 495 of 2014, Justice Leonard Njagi v. The Judicial Service Commission, the Judiciary and The Attorney General; and Petition No 386 of 2015, Lady Justice Kalpana Rawal v. the Judicial Service Commission, the Secretary of the Judicial Service Commission; Okiya Okoiti Omtatah.
 R. Mwongo, Pj, W. Korir, J, C. Meoli, J, H. Ong’udi, J, C. Kariuki, J.
 Para 399.
 Justice Kalpana H. Rawal v. Judicial Service Commission & 3 others  eKLR. (Per Justices, Kariuki, Makhandia, Ouko, Kiage, M’inoti, J. Mohammed & Odek, Jj.A).
 Kamau Muthoni, “Supreme Court moves to save Rawal and Tunoi hours after Court of Appeal sends them home,” available at https://www.standardmedia.co.ke/article/2000203232/supreme-court-moves-to-save-rawal-and-tunoi-hours-after-court-of-appeal-sends-them-home accessed on 23 April 2017.
 Richard Munguti, “Mutunga fast tracks Rawal retirement case,” http://www.nation.co.ke/news/Mutunga-wades-into-Rawal-retirement-case/1056-3225372-format-xhtml-nt1pdoz/index.html accessed on 23 April 2017.
 Mutunga, Wanjala and Ibrahim JJSC, against Ojwang and Ndungu JJSC.
 Abiud Ochieng, “End of the road the for Rawal, Tunoi as jobs are advertised,” (Daily Nation, 15 June 2017) available at http://mobile.nation.co.ke/news/end-of-the-road-the-for-rawal-tunoi-as-jobs-are-advertised/1950946-3251578-1185j5a/index.html.
 Constitution of Kenya, Chapter 8.
 Ibid, Chapter 11.
 Constitution of Kenya, First Schedule.
 Available at http://kenyalaw.org/caselaw/cases/view/120392/ accessed 31 March 2017 .
 Ibid para. 65.
 Para 19.
 Ibid, Para 307.
 Ibid, para 114.
 The amendment bills were published in the official Gazette.
 http://www.kenyalaw.org/kl/fileadmin/pdfdownloads/bills/2016/ConstitutionofKenya__Ammendment_Bill_2016.pdf accessed on 31 March 2017.