Kenya’s new constitution was enacted on 27th August 2010 replacing the old one that had been in place since Kenya’s Independence in 1963 besides numerous amendments that made it very porous. The promulgation of this new constitution marked the end of one of the longest journeys in Kenyan history. It took more than a two decade to fight for this reform. Many Kenyans voted for this new constitution in a referendum that led to a historic and spectacular moment in Kenya’s democracy. This paper will briefly explain some differences between the old and the new constitution and their implications to Kenyan’s democratic political system.
The preamble sets out the ...view middle of the document...
The exceptions as to when any right may be abrogated have been clearly provided for. Harassment and intimidation is a thing of the past. Redress for breach of rights is provided for. Socio-economic rights are also recognized. The Bill of Rights forms a basis for the realization of human dignity and self fulfillment.
Another major difference between the old and the new constitution is that in the new constitution, it established 47 counties, each with its own government. The counties share sovereignty with the national government but they reserve the right to determine a set of laws for themselves. Devolution of power and resources has been provided for too promote effective citizen participation in governance and accountability. County governments consist of a county assembly and a county executive. The county assembly is made up of members elected from different wards in the county. By so doing, the people under this country have their democratic right to vote for the man or woman to govern their country. The county governor is the head of the county executive. Voters in each county elect their governor and deputy governor directly. The governor then appoints other members of the county executive committee, with the approval of the county assembly. The old constitution did not have this provision. The provincial administration was in charge of 8 provinces which were also sub-divided into many districts, divisions and locations. The appointment of these positions was done by the president and the public service commission therefore not giving people a chance to practice their democratic rights of electing their leaders. This would bring about some social injustices like corruption and land grabbing in areas where people are not loyal to the government of the day.
The third difference between the old and the new constitution is in the judicially. Judicial authority is declared to derive from the people. This is key because the judiciary must therefore serve the best public interest. An independent and better mixed Judicial Service Commission was established with Public participation in the new constitution. Judges are now vetted and approved by Parliament which is an ongoing process to date. The positions in the judiciary are now being advertised and competitively filled taking into account the principles of equity, equality expertise. In the old constitution, the law applicable did not derive authority from the sovereignty of the people. Judges were appointed in opaque manner with Judicial Service Commission which was the only beholden to the President. Neither standards were set out nor criteria for appointment other than age. Corruption was rampant without any checks and balance or accountability. Chief Justice had no deputy thus creating incentive for personal loyalty from individual judges to the CJ thus killing judicial independence.
The fourth difference in both the constitutions is how the constitution can be amended. In the new...