2023

UNIVERSITY OF NAIROBI
FACULTY OF LAW

GPR 3107 CONSTITUTIONAL LAW 1

ASSIGNMENT

MODULE II DAY - NOVEMBER GROUP

Hibbo Ali G34\144426\2022

Jane Baraza G34\144475\2022
Daniellah Cherono G34\144025\2022
Daniel Owino G34\144974\2022
Owen Alala G34\143962\2022
Edith Wanyonyi G34\145164\2022
Oliver Agina G34\144932\2022
Pretty Mokami G34\144745\2022
Peter Busolo G34\144607\2022
Austin Munene G34\144889\2022
Natasha lale G34\144940\2022
Brian Kinyua G34\144211\2022
Leon Ndabu G34\145224\2022
Tallia Saida G34\144199\2022
Jackie Ivy G34/144795/2022
QUESTION 8.

“Whereas ‘constitutional flexibility’ in the context of constitutional amendment works

to guarantee that the Constitution reflects the necessary changes in the society and
sovereignty of the people, ‘constitutional rigidity’ on the other hand ensures that the
Constitution is not subject to unnecessary amendments, or what the High Court in the
BBI case referred to as 'hyper amendments'”. By critically analysing the Constitution of
Kenya 2010 while citing relevant laws, case law (Draft), Amendment Bills, and other
relevant examples, discuss how the Constitution of Kenya 2010 has 'safeguards' that
guarantees both its flexibility and rigidity.

A constitution is a set of agreed rules, norms and principles that bind a polity. It is also the
document which contains these rules and norms and which is used to set up the systems of
governance in a particular country or jurisdiction. Professor JB Ojwang further defines the
constitution as the scheme of organization of public responsibilities which must be performed
in any community. 1In this definition, he avers that this scheme identifies and prescribes the
public organs within the community to which it vests particular roles. The roles are thus
discharged by these public organs, through the public officials within these organs, in the
interest of the people and the community as a whole. However, the constitution does not only
set up the institutions and vest powers and functions to them, but it also limits the powers
given to these institutions so as to ensure that these institutions do not become overbearing by
exceeding the powers and functions invested in them.

Constitutional flexibility is defined as the ability of a constitution to adapt to the societal

changes while still maintaining its relevance without requiring it to be rewritten or
overhauled. A flexible constitution therefore has in place mechanisms which allow for
changes to be made to various sections of the document from time to time in line with the

1J.B. Ojwang (1990) Constitutional Development in Kenya: Institutional Adaption and Social Change, African

Centre for Technology Studies (ACTS), Nairobi, Kenya

1
changing societal needs, while still retaining the fundamental principles of constitutionality
and the protection of the rights and freedoms of the citizens.

On the other hand, constitutional rigidity is the lack of flexibility in a constitution which
makes it hard to adapt to changing circumstances in the society. This rigidity is because the
process of amending the constitution is overly complex or because the constitution embodies
a language or text that is not easy to change. The rigidity of the constitution makes it unable
to adapt to the dynamic societal needs and may result to the constitution losing its relevance
among the citizens as it will be seen not to serve their changing needs. Nonetheless, a rigid
constitution establishes its supremacy and fireproofs itself from arbitrary amendments that
seek to tamper with it for the personal gains of the initiators of such amendments.

Constitutional Flexibility

With regard to the flexibility of the constitution, the Constitution of Kenya 2010 has put in
place several mechanisms which allows for changes to be effected to it by means of
constitutional amendments from time to time, in order to make it adaptable to the changing
needs of the society.

These provisions include;

1. Provision for an amendment procedure

The constitution provides for a procedure to be followed in order to make an amendment to

any part of the document. Articles 255, 256 and 257 provide an elaborate procedure, through
a referendum, that should be followed in amendment of any part of the constitution to reflect
the changes in the society. The amendment is possible through this means if it touches on the
matters of the supremacy of the constitution, the territory of Kenya, the sovereignty of the
people, national values and principles, bill of rights, independence of the judiciary and the
term and office of the president. It provides that any proposed amendment to the constitution
can be made through a parliamentary initiative or through a popular initiative.

Through the parliamentary initiative process, the proposed amendment Bill to change the
Constitution is introduced to either house of parliament, National assembly or the Senate, and
subjected to a vote where a two-thirds majority is required to pass the Bill. The Bill has to be

2
passed by both houses of the Parliament. Once the Bill to amend the constitution is passed,
the president assents to it and the proposed amendment is subjected to the referendum.

The popular initiative however demands that the draft bill for the proposed amendment
should be tabled to the Independent Electoral and Boundaries Commission, supported by at
least one million registered voters. Upon verification, IEBC shall then submit the draft bill to
the county assemblies for consideration. Upon approval by the county assemblies, the
speakers of the county assemblies shall deliver a copy of the draft bill jointly to the speakers
of the national assembly and the senate. This route was followed in the proposed amendment
bill, The Building Bridges Initiative,2 which sought to effect numerous amendments to the
Constitution of Kenya 2010 including among others the creation of the office of the Leader of
Official Opposition, the creation of the office of the Judiciary Ombudsman, the introduction
of the executive to the legislature and the creation of the position of the Prime Minister and
two deputies.

In both the parliamentary initiative or popular initiative, the proposed amendment bill is
subjected to a referendum where it should be voted by at least twenty percent of the
registered voters in each of at least half of the counties in the referendum. It should also
receive support of a simple majority of the citizens voting in the referendum for it to pass and
in order for the amendment to be effected.

2. Broadly worded provisions

The Constitution of Kenya 2010 in furtherance of the concept of flexibility contain laws
which are written in general terms allowing for a degree of flexibility in interpretation and
application. This is to ensure that the law anticipates the changes in the society and that the
interpretation is broadened to cover these changes in most cases except for novel
situations.

3. The concept of the living constitution.

The constitution has also evolved to incorporate the living constitution concept. This is a
concept which was adopted in the making of the Constitution of Kenya 2010. It espouses that

2 Reportof the Steering Committee on the Implementation of the Building Bridges to a United Kenya Taskforce
Report (2020) Building Bridges to a united Kenya: from a nation of blood ties to a nation of ideals

3
the legal content and the constitutional doctrine entailed in the constitution does and should
change in response to changing circumstances and values. 3It means the constitution is alive
and therefore evolves from time to time to ensure it meets the dynamic needs of its citizenry.
Professor Ben Sihanya avers in his description of the constitution that it is in fact a way of
life and embodies core legal, cultural, economic, political and social values of the society
concerned. 4 With the constitution therefore being a way of life, it must itself be alive in order
to reflect the life of people or the society it guides for it to remain relevant to them.

In the case of Timothy Njoya and 6 others v. Attorney General and another, 5the plaintiff
sought orders from the court to declare that the Constitution of Kenya Review Act in section
26 (7) and 27 (1)(b) transgressed and diluted the constituent power of the people of Kenya to
adopt a new constitution, when it vested this constituent power to review the constitution to a
public body and yet the constitution gives every person in Kenya an equal right to review the
constitution. The court in declining this request stated they would not accept the proposition
that the constitution ought to be read and interpreted in the same way as an Act of Parliament.
It stated that the constitution is not an Act of Parliament, it exists separately from the statutes
and it is supreme. The court further averred that it is important to appreciate that the
constitution has principles and values embodied in it and that a constitution is a living piece
of legislation and a living document.

4. Provision for Subsidiary Legislation

The constitution also provides for Subsidiary legislation as a mechanism to ensure flexibility
of the constitution. Article 94 (5) and (6) of the constitution states that a public officer or a
public body may have powers to enact law if such powers are conferred to them either by the
constitution or by an Act of Parliament. This means that other public bodies or officers other
than the legislature may have the capability to enact subsidiary legislation under delegated

3 Lawrence Solum (2020) Legal Theory Lexicon: Living Constitutionalism. Legal Theory Blog at
https://lsolum.typepad.com/legaltheory/2022/07/legal-theory-lexicon-living-constitutionalism.html (Accessed
11/2/2023)
4 Ben Sihanya (2022) Constitutional Democracy, Regulatory and Administrative Law in Kenya and Africa

(CODRALKA 1) Vol. 1: Constitutional Text, Structure, History, Method, Theory and Systems in Kenya and
Africa, Nairobi & Siaya.

5 Reverend Dr. Timothy Njoya and 6 others v. Honorable Attorney General and another [2004] eKLR,

4
powers. This makes the constitution flexible in that the law making powers are not only
vested in the parliament. Should there be a need for a piece of legislation to be enacted by a
mandated public body in a situation where the parliament is not able to convene, or during an
emergency where the enactment should be prompt, then subsidiary legislation provides a
quicker way out. The article however states that such powers conferred to a public officer or
a public body should not be unfettered. The Act conferring such powers must specify the
limits of such power, the nature and scope of the powers as well as the principles and the
standards applicable to the laws made under such delegated authority.

In 2020, at the height of the Covid-19 Pandemic, the Cabinet Secretary in charge of Health,
Mutahi Kagwe, made subsidiary legislation in form of rules and regulations to help guide the
country in the prevention, control and suppression of Covid -19. 6 This was in exercise of the
powers of subsidiary legislation conferred to the cabinet secretaries by the parliament. The
regulations required among many other things that cases of Covid-19 infections be promptly
reported to health officers and any persons in contact with the infected person (s) should
ensure that they isolate or quarantine themselves for a period of 14 days until declared free
from the virus.

5. Provision for the use of executive orders by the president

The constitution of Kenya 2010 also makes a provision for the president to make executive
orders in the course of performance of his presidential functions or in exercise of his
executive authority. Executive orders are rules, pronouncements or declarations made by the
president and which have the effect of becoming law that can be enforced. Article 133 of the
Constitution of Kenya 2010 states that the President, in the performance of any function
under the constitution, can make a decision and that the decision should be in writing and
bearing the seal and the signature of the president.

This provision is part of the flexibility of the constitution in that unlike most presidential
decisions which would ordinarily require parliamentary approval, presidential executive
orders are an exemption. The president can thus utilize this constitutional provision to
organize the structure of his government in conformity with the dynamic changes in the

6 The Public Health (Prevention, Control and Suppression of COVID-19) Rules, 2020.

5
society, or to establish a way forward in a situation where there is a deadlock in the
government.

The presidential directives or executive order however need to be consistent with the
Constitution or any other laws of Kenya. Article 129 (2) states that executive authority shall
be exercised in a manner compatible with the principle of service to the people of Kenya and
for their well-being and benefit. In January 2023, President William Samoei Ruto issued
Executive Order No. 1 of 2023, 7in which he set out the structure of his government. The
executive order assigned functions and institutions among Ministries and State Departments
and at the same time superseded a previous Executive Order No. 1 which the president had
issued previously on 12th October 2022.

However, in the case of Law Society of Kenya v Attorney General and another; Judicial
Service Commission (Interested Party) [2020] eKLR,8the Law Society of Kenya
challenged the Executive Order No. 1 of 2020 made by president Uhuru Kenyatta on 14th
January 2020. In the executive order, the president while organizing the structure of his
government set out the Judiciary and its tribunals as institutions under the functions of the
ministries and government departments. The president also purportedly set out Commissions
and Independent Offices as institutions under the functions of ministries and government
departments. The court issued conservatory orders suspending the implementation of the
executive order because it contravened independence of the Judiciary as well as the
Commissions and Independent Offices.

The court in its decision reiterated the supremacy of the constitution of Kenya 2010 under
Article 2 (1) and (2) which states that the constitution is the supreme law of the Republic and
it binds all persons and all State organs at both levels of government. It further averred that
no person may claim to exercise State authority except as authorized under the constitution.
The president was thus established to have constitutional power to organize the structure of
his government but only in so far as that organization does not contravene the constitution,
otherwise it would be inconsistent with the constitution and thus void to the extent of its
inconsistency.

7 Executive Order No. 1 of 2023. Organization of The Government of the Republic of Kenya. Government
Printer, Nairobi.
8 Law Society of Kenya v Attorney General and another; Judicial Service Commission (Interested Party) [2020]
eKLR

6
6. Provision for Judicial Review

Judicial review is a court proceeding in which the judiciary through the courts are authorized
to review the legality of actions or decisions made by the other organs of the government or
by a public body. This is to ensure that the neither the legislature nor the executive goes
overboard in exercising their powers or in performance of their functions.

Article 47 (1) and (2) of the Constitution of Kenya 2010 provides for fair administrative
action and states that every person has a right to administrative action that is expeditious,
efficient, lawful, reasonable and procedurally fair. The Article further states that if a right or
fundamental freedom of a person has been or is likely to be adversely affected by
administrative action, the person has the right to be given written reasons for the action. The
courts are thus permitted through judicial review to revoke unlawful administrative decisions
that are inconsistent with article 47.

Judicial review is therefore indicative of the flexibility of the constitution of Kenya 2010 in
that it provides an opportunity for amendments to be made to an enactment of legislation or
to an executive decision or action carried out in contravention of the constitutional provisions
or other laws of Kenya. The courts can hence strike down such unconstitutional legislation or
administrative actions and direct that proper amendments be made to them by the responsible
law making bodies.

In the case of Francis Karioko Muruatetu and another v Republic [2017] eKLR, 9the
petitioner contested the mandatory nature of the death penalty under Section 204 of the Penal
Code where an accused person found guilty of murder is supposed to receive death penalty.
He argued that this pre-determined sentence by the legislature contravened the doctrine of
separation of powers as it violated the right of the Judge to exercise his own discretion in
hearing of such a case and in sentencing. The court reviewed the provisions of Section 204 of
the Penal Code and declared it unconstitutional. It further directed that this declaration of
Section 204 of the Penal Code be placed before the Parliament, the Attorney General and the
Kenya Law Reform Commission for any necessary amendments to be made urgently made to
the Penal Code in line with the findings of the court.

9
Karioko Muruatetu and another v Republic [2017] eKLR

7
This means that the courts provide for an amendment to unconstitutional legislation enacted
in inconsistence with the constitution.

7. Executive clemency

The Constitution of Kenya 2010 in Article 133 (1) grants the president the power of mercy.

This allows the president to exercise his executive powers to pardon a convicted person,
postpone their carrying out of a punishment or even substitute their punishment with a less
severe form of punishment without having to subject such an executive decision to the
parliament for approval. The president in exercise of this power however needs to be advised
by the Advisory Committee on The Power of Mercy. Article 133 (2) set up the Advisory
Committee on The Power of Mercy to consist of the Attorney General, the Cabinet Secretary
in charge of Correctional Services and at least five other members prescribed by an Act of
Parliament but who should not be state officers or serving in public service. The tenure and
procedure of operation of the committee is guided by an Act of parliament. 10

This provision is indicative of the flexibility of the constitution because it averts a situation
where the executive can come into a deadlock with the parliament in such matters of
pardoning criminals should the parliament be required to approve such decisions. It also
enables the president to ensure his governance conforms to the needs of the society at any
given time without so much impediments where he has to always seek parliamentary
approval in exercising of such powers.
 8. Right to recall

The flexibility of the constitution of Kenya 2010 is also seen in Article 104 (1) which gives
the electorates the right to recall their representatives in the national assembly as in Article 97
as well as the Senate as outlined in Article 98 of the constitution. Article 104 (2) directs the
parliament to enact legislation which provides for the grounds on which such people’s
representatives may be recalled and the procedure to be followed. This is in accordance to the

10 The Power of Mercy Act No. 21 of 2011

8
provisions of Article 1 of the constitution which underlines that all sovereign power belongs
to the people of Kenya. The power of representation is thus delegated to the political class by
the sovereigns who are the people.

This flexibility of the constitution gives people the direct power to also effect changes in the
composition of the leadership without such changes necessarily having to come from the
elected leaders or public officers. It ensures that the people’s representatives or the political
class is put under check and can be recalled by the people themselves should they fail in
performance of the duties for which the people have elected them to, and which include
representation, oversight and legislation.

However, in the case of Katiba Institute and another v Attorney General and another, 11
the petitioner filed a case in court asking the court to declare that parliament had failed to
substantively enact laws as directed by Article 104 (2) as read with the Fifth Schedule of the
constitution to enable the operationalization of the right to recall. The petitioner further
averred that the purported enactment of Elections Act 12 and the County Government Act 13
enacted by the Parliament in an attempt to meet the constitutional requirement was
unconstitutional and inimical to the letter and spirit of the constitution in so far as it did not
provide substantive legislation to guide on the recall members of county assembly as well as
the members of the parliament. The petitioner thus sought declaration that the parliament had
failed in enactment of legislation under Article 104 (2) read with the Fifth Schedule of the
constitution, and asked the court to issue an order to compel the parliament to pass
substantive legislation on the same within ninety days.

The court thus issued a declaration that Sections 45, 46 and 48 of the Elections Act and
Sections 27 and 28 of the County Governments Act was meaningless and superfluous and
hence fell short of the constitutional imperative in Article 104. Both Acts of Parliament were
therefore rendered unconstitutional.
11 Katiba Institute and another v Attorney General and another [2017] eKLR
12 Elections Act 2011
13 County Government Act 2012

9
9. Alternative Dispute Resolution

Article 159 (2) (c) of the constitution of Kenya 2010 gives judicial authority to the courts to
promote the use alternative forms of dispute resolution in resolving the various disputes
brought before the court. These alternative dispute resolution mechanisms include among
other mediation, arbitration, reconciliation and traditional dispute resolution.

This provision of the constitution shows how flexible the constitution is in ensuring delivery
of justice to the citizens through the various forms without insisting on litigation as the only
mechanism of dispute resolution.

10. Executive agreements and Executive privilege

The constitution of Kenya 2010 makes provisions for the executive branch through the
president and the cabinet secretaries to be able to enter into agreements with other
international agencies and even countries in the course of performance of their functions
without the need for legislative approval. This provides some flexibility in the formation and
adoption of foreign policy by the ministries.

The executive also enjoys a privilege which allows them to keep certain information
confidential, in order to protect national security or other vital interests, providing flexibility
in certain circumstances.

Constitutional Rigidity

With regard to the rigidity of the Constitution, the constitution of Kenya 2010 has put in
place several safe guards to ensure that it is not subject to unnecessary amendments as was
the case with the 1969 Constitution of Kenya. In the 1969 constitution, arbitrary amendments
were made to the constitution such as the incorporation of the illegal and unconstitutional
Section 2A that declared that there shall be only one political party in Kenya, the Kenya
African National Union, in blatant contravention of the Bill of rights which provided for
freedom of conscience, opinion, expression, assembly and association. 14

14 Ben Sihanya (2022) Constitutional Democracy, Regulatory and Administrative Law in Kenya and Africa
(CODRALKA 1) Vol. 1: Constitutional Text, Structure, History, Method, Theory and Systems in Kenya and
Africa, Nairobi & Siaya.
 10
The mechanisms that safeguard the constitution against unnecessary or arbitrary amendments
include;

1. Constitution’s preamble

The preamble of the Constitution of Kenya 2010 establishes the foundations upon which the
constitution is built. These foundations include among others the acknowledgement of the
supremacy of God, the acknowledgement of the cultural diversity of the people of Kenya and
the recognition of the aspirations of all Kenyans for a government based on the values of
human rights, equality, social justice and the rule of law. These foundations and the essential
values are rigid and not easy to amend through the provided procedure for amendment.
Article 255 provides for amendment of the constitution and goes further to list the matters
which are subject to amendment. It notably leaves out the preamble of the constitution
implying that it is rigid and cannot easily be amended.

2. Supremacy of the Constitution.

The constitution of Kenya 2010 also reaffirms its supremacy in Article 2 (1) as the supreme
law of the Republic and which binds all persons and all state organs at both levels of
government. Article 2 (3) further states that the validity and legality of the constitution is not
subject to challenge by or before any court or other state organ. This concept of the
supremacy of the constriction therefore entrenches the rigidity of the constitution as not
possible to change in instances where it is in conflict with any other law in the republic. It is
the supreme law and any other law inconsistent with it is void to the extent of the
inconsistency.

In the case of William Maina Njuguna v The Hon. Attorney-General and three Others,15 the
Supreme Court of Kenya reaffirmed the importance of constitutional supremacy, ruling that
the Constitution of Kenya is the supreme law of the land and that all other laws must adhere
to it.

15 William Maina Njuguna v The Hon. Attorney-General and three Others [2017] eKLR

11
3. Requirement for Super Majority Approval
The constitution of Kenya 2010 has an entrenched provision in Article 256 (1)(d) which
requires that for a proposed amendment bill to the constitution to sail through, it must gain an
approval by super majority of two thirds of the members of the National Assembly and the
Senate. The constitution can thus not be amended without this super majority support of the
law makers in both houses of the parliament. Garnering support of two third of the members
of both houses is an uphill task to any mover of an amendment bill and if such a proposed
amendment is not necessary then it will seldom obtain such a super majority support. This
requirement also ensures that the members critically analyze the proposed amendment bill
and the that the amendment is really necessary and justified before it can sail through both
houses of parliament. This therefore safeguards the constitution from any unnecessary and
unjustified proposed amendments. In the Building Bridges Initiative case ruling, 16 the court
recognized that the constitution has a rigidity threshold which makes it difficult to amend.
The court further averred that the constitution is deliberately designed to be difficult to amend
and that the threshold for amending the constitution is high to ensure that amendments are
only made when it is necessary and in the best interests of the people.

4. Entrenched Provisions

The Constitution of Kenya 2010 has within it, entrenched provisions, which are difficult to
amend by the regular constitutional amendments procedures. These entrenched provisions
include the Bill of rights, the structure of government and the system of governance. The Bill
of Rights for instance are laws that guarantee certain individuals rights and freedoms such as
the freedom of speech, religion and assembly which are fundamental and cannot be easily
changed or taken away. Article 23 (3) of the constitution gives authority to the courts to
enforce the bill of rights by declaring invalid any laws that violate or threaten a right or
fundamental freedom in the Bill of rights, and which is not justified under the criteria for
limitation of rights and fundamental freedoms as provided for in Article 24.

16 David Ndii and others v Attorney General others [2021] eKLR

12
In the case of Kenya National Commission on Human Rights & Another v Attorney
General & 2 Others.17 This case dealt with the question of whether the government had
violated the rights of the people by failing to provide a comprehensive legal framework for
the protection of the rights of the marginalized groups.
 5. Public participation

Public participation is one of the key pillars enshrined in the constitution so as to enable the
citizens to participate in the decision making processes. It is the involvement of the people in
the decision making processes by the government such as in law making in order to
incorporate their views. The constitution in Article 1 states that sovereignty and power
belongs to the people. This means that all major decision making processes therefore has to
involve the citizens and their views have to be incorporated. Also Article 10 (2) (a) of the
constitution lists public participation as among the key values and principles of governance
envisaged in the constitution.

The requirement for public participation is a critical safeguard in so far as the rigidity of the
constitution is concerned because it ensures that the views of the sovereigns are sought in the
law-making process. The citizens are therefore able to scrutinize the proposed bill and to give
their inputs. Their views are incorporated before the bill can be passed. This in a way
oversights the decision making process ensuring that the laws made have the interest of the
people as opposed to those of the particular individuals. This fireproofs the constitution
against unnecessary or arbitrary amendments as the people have to be involved thereby
contributing to the rigidity of the constitution.

In the case of Kaps Parking Limited and another v County Government of Nairobi and
another, 18 the petitioner argued that in as much as the County Government of Nairobi is
constitutionally and legally mandated to enact laws guiding the county finances, its
enactment of the Nairobi City County Finance Act 2018 (Finance Act) contravened the
constitutional provision that such an Act should be enacted within Ninety days of
establishment of the county government, should incorporate adequate public participation
before the same can be passed into law and should be gazette. The Finance Act 2018 was

17 Kenya National Commission on Human Rights & Another v Attorney General and two Others [2013] eKLR.

18 Kaps Parking Limited and another v County Government of Nairobi and another [2021] eKLR

13
th
passed on 4 December 2018, three months outside the 90- days constitutional timeline, and
without the involvement of public participation as constitutionally required in article 10 or
gazettment of the same.

The court in its ruling therefore declared that the enactment of the Finance Act was
unconstitutional in so far as it violated article 10 and lacked reasonable public participation,
stakeholder consultations and administratively fair procedures.
 6. Fusion of power, checks and balances

This provides a safeguard to the Constitution of Kenya 2010 in so far as it demands in certain
terms that one branch of the government cannot be able to perform certain functions or
exercise certain powers until another branch of the government is able to review it and
approve.

This is the principle that limits power to an individual or government body of government
and provide harmony between the various organs of the government.

7. Separation of powers.

Separation of powers is another safeguard mechanism that the Constitution of Kenya 2010
has put in place to ensure its rigidity and therefore make it difficult to amend arbitrarily. This
is a constitutional principle which was established by Charles Monte Beau de Montesquieu 19
where he stated that the three organs of government – the executive, legislature and judiciary
– should each have a discrete and defined area of power and that there should be a clear
demarcation of functions between them. In his proposition, only then can true separation of
powers be said to exist.

Separation of power therefore provide rigidity to the constitution because it sets out specific
roles and powers that each branch of the government can carry out. It ensures that the
functions, the public officials and the powers of major institutions of the state are not all
vested in one body but rather spread out across many bodies each performing its own. It aims

19 Charles Monte Beau de Montesquieu (1748) The Spirit of Laws

14
at diffusing the power within the state as opposed to concentrating it in one place. This way it
prevents abuse of power and protects the rights and the fundamental freedoms of the citizens.

8. Forms of Government

The constitution of Kenya 2010 sets the form of organization that the government should take
and the methods of distributing powers between different arms and levels of government. 20
The form of the government of Kenya is set out as a presidential system whereby the
president is both the head of state and the head of government. This form and structure is
rigid and not easily amended unless through the high threshold of a referendum and thus
providing a safeguard to the constitution.

9. Federalism

Federalism is a system of government which combines the general government with the
regional government in a single system politically. The powers are however divided between
the two governments and exercised separately.

The constitution of Kenya 2010 has also divided powers between the national government
and the county governments in a system known as the devolution of government. This
devolution of power is entrenched in the constitution in Article 1 (4) which states that the
sovereign power of the people is to be exercised both at the national level and at the county
level.

10. Emergency powers

The Constitution of Kenya 2010 in article 132 (4) (d) grants the president power to declare a
state of emergency. This power is however not absolute and has to be checked according to

20 PeterWayande (2001). Structure of Government and The Scope & Method of Division of Power.
Constitution of Kenya Review Commission

15
article 58 (1) (a) which specifies that such emergency can only be declared when the state is
threatened by war, invasion, general insurrection, disorder, natural disaster or other public
emergency.

This constitutional provision embodies rigidity of the constitution in so far as it establishes

the limits within which the government can act in case of declaration of an emergency. In
article 58 (2) (b), it also limits the government on the duration of the state of emergency
should it be declared. Such duration is specified not to exceed fourteen days from the date
declaration unless the National assembly makes a resolution to extend the duration.

The limitation of emergency powers of the president to declare the state of emergency
therefore provides rigidity in the constitution in the circumstances and the manner in which it
may be done to prevent abuse of power where a president may declare a state of emergency
towards achievement of ulterior motives.
In conclusion, constitutional flexibility works to guarantee necessary changes in sovereignty
of the people and society as seen above. The constitutions rigidity and flexibility is clearly
illustrated above.

16
Bibliography

Constitution

1. The Constitution of Kenya 2010.

Statutes

1. The Public Health (Prevention, Control and Suppression of COVID-19) Rules, 2020.
2. Elections Act 2011
3. County Government Act 2012
4. The Power of Mercy Act No. 21 of 2011
5. Executive Order No. 1 of 2023. Organization of The Government of the Republic of
Kenya. Government Printer, Nairobi.
Cases

1. Reverend Dr. Timothy Njoya and 6 others v. Honorable Attorney General and another
[2004] eKLR,
2. Law Society of Kenya v Attorney General and another; Judicial Service Commission
(Interested Party) [2020] eKLR
3. Karioko Muruatetu and another v Republic [2017] eKLR
4. Katiba Institute and another v Attorney General and another [2017] eKLR 5. William
Maina Njuguna v The Hon. Attorney-General and three Others [2017] eKLR 6. David
Ndii and others v Attorney General others [2021] eKLR
7. Kenya National Commission on Human Rights & Another v Attorney General and
two Others [2013] eKLR.
8. Kaps Parking Limited and another v County Government of Nairobi and another
[2021] eKLR

Books

1. Ben Sihanya (2022) Constitutional Democracy, Regulatory and Administrative Law in

Kenya and Africa (CODRALKA 1) Vol. 1: Constitutional Text, Structure, History,
Method, Theory and Systems in Kenya and Africa, Nairobi & Siaya.
2. J.B. Ojwang (1990) Constitutional Development in Kenya: Institutional Adaption and
Social Change, African Centre for Technology Studies (ACTS), Nairobi, Kenya 3.
Charles Monte Beau de Montesquieu (1748) The Spirit of Laws

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4. Report of the Steering Committee on the Implementation of the Building Bridges to a
United Kenya Taskforce Report (2020) Building Bridges to a united Kenya: from a
nation of blood ties to a nation of ideals

Journals and Electronic journal

1. Peter Wayande (2001). Structure of Government and The Scope & Method of
Division of Power. Constitution of Kenya Review Commission
2. Lawrence Solum (2020) Legal Theory Lexicon: Living Constitutionalism. Legal
Theory Blog at https://lsolum.typepad.com/legaltheory/2022/07/legal-theory-lexicon
living-constitutionalism.html (Accessed 11/2/2023)
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