Why Kenya’s Sovereignty is Vested in Kenyans, and not the political class

The Supreme Court of Kenya

The Constitution of Kenya promulgated on 27/08/2010 in its preamble, is everything that its citizens hoped for:

We the People of Kenya; Acknowledge the supremacy of the Almighty God of all creation; Honour those who heroically struggled to bring freedom and justice to our land; Proud of our ethnic, cultural, and religious diversity, and determined to live in peace and unity as one indivisible sovereign nation.

Respectful of the environment which is our heritage and determined to sustain it for the benefit of future generations; Committed to nurturing and protecting the well being of the individual, the family, communities, and the Nation;

Recognizing the aspirations of all of Kenya for a government based on the essential values of human rights, equality, freedom, democracy and social justice, and the rule of law; Exercising our sovereign and inalienable right to determine the form of governance of our country and having participated fully in the making of the constitution, adopt, enact and give this Constitution to ourselves and to our future generations.”

And Section 1 of the Constitution states that all sovereign power belongs to the people of Kenya and shall be exercised only in accordance with the Constitution. 

The Constitution therefore bestows the highest power of the country of Kenya on the people of Kenya and everybody else is subordinate to the people of Kenya.

The Constitution of Kenya further Section 1 (3) stipulates that Sovereign Power (which belongs to the people of Kenya) is delegated to the following organs and which shall perform their functions in accordance with the constitution: Parliament and the legislative assemblies in the County Governments; The National Executive and the executive structures in the county government and The Judiciary and independent tribunals.

And that the said sovereign power of the people is to be exercised at the National Level and County level.

As per the provisions of Section 1 (3) of the Constitution Parliament, the Executive and the Judiciary in Kenya are only delegated to exercise the sovereign power of the people of Kenya as delineated in the supreme law of the land being the Constitution.

The aspirations of the Kenyan people as embodied in the Preamble to the Constitution stand at risk of being subverted, mutilated, and rendered impotent by our Parliamentarians and other arms of government the Executive and the Judiciary.

Currently, there is too much clamor to change the Constitution.

Professor Karuti Kanyinga, Kenya – Democracy and Political Participation, says besides the Constitution has addressed some of the obstacles that prevented the consolidation of democratic gains. This is through the two levels of government, the appointments to public office reflect the face of Kenya.

However, the Professor writes “The Constitutional promise to deliver democracy will not be realized if the values and principles of the Constitution are not translated into concrete actions.

To realize these principles and anchor a democratic order, Kenya must nurture the rule of law by committing to enforce all laws and embracing constitutionalism.”

But, this has not been the case. Impunity has been the order of the day. Rampant corruption. The quest to promote participatory democracy has become a mirage. A culture of accountability is no longer the norm, social justice is just a word along the streets, human rights.

Thus, before the citizenry is fooled into a participant in the referendum if at all we shall arrive at that level, they should first reflect and clearly understand that the constitution promised a clear path to democracy recognizing the sovereignty of the people as the anchor of the nation and provides for the participation of the people in decision making at all levels.

“The preamble is the voice of the people…it provides many opportunities for people to influence the decisions of the state and in several cases to participate in them. It values diversity among our people, but envisages them united in common loyalty to the country, sharing fundamental values and aspirations.”

Professor Yash Pal Ghai and Jill Cottrell Ghai, Kenya’s Constitution: An Instrument for Change, state that a constitution is not the same as politics, but constitutions affect politics, and politics affect the constitution.

“Constitutions affect politics, hopefully by constitutional values and definitely by the rules for elections, the structure of government, the distribution of and restrictions on power, human rights, rules about land and resources.”

On the other hand, “Politics affects the constitution through the role of political parties, by the way, the government and other state agencies interpret and use their constitutional power, and respect or ignore its provisions.”

Thus, Yash and Gill conclude that “Amending the constitution can change the framework for elections, the distribution of power, the limits on power, abolish or establish institutions and so on.”

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