Volume: Volume 19 - 2015

Article type: Refereed article

Author/s: Oloka-Onyango, Joe

While it took over 20 years of ferocious street action, post-election violence and several abortive efforts at enactment, the arrival of Kenya's 2010 Constitution was well worth the long and conflicted wait.  A number of major changes introduced stand out for consideration, the first being the amendments to the power and independence of the courts of law in accordance with the doctrine of 'transformational constitutionalism' and the second concerning the entrenchment of a slew of economic, social and cultural rights as part and parcel of the Bill of Rights. Both have been buttressed by reformulated provisions on marginalised groups, especially women, indigenous peoples and people with disabilities.  Since its enactment, Kenyans have been reaping the benefits of entrenched rights to housing, education, and water and against various forms of discrimination.  While there are setbacks in that some courts are yet to internalise what constitutional 'entrenchment' and justiciability actually mean, and the Executive and Legislature are still reluctant partners in endorsing this change, the general movement is in a positive direction.  Lessons in this respect can be learnt those countries which are near such as Kenya's East African neighbours and those still grappling with how to find ways in which to ensure that this category of rights enjoy the same substantive status as their counterpart civil and political rights.

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