Working Papers

Contitutional Working Paper Series | 2011

In 2010, on the cusp of Kenya’s new constitutional dispensation, SID embarked on a project called ‘Thinking, Talking and Informing Kenya’s Democratic Change Framework’. Broadly stated, the objective of the project was both historical and contemporary: that is, to reflect on Kenyans struggles for a democratic order through a book project, and to examine the significance of a new constitutional order and its legal and policy imperatives, through a Working Paper Series.

Consequently, SID commissioned research on some of the chapters or aspects of the new constitution that require further policy and legislative intervention, culminating in ten Working Papers. These papers, mostly by Kenyan academics, are intended to help shape public discussions on the constitution and to build a stock of scholarly work on this subject.

Restructuring the Kenyan State 
by Joshua M. Kivuva | WP no. 1


The 2007 post election violence not only convinced Kenyans of the inevitability of a new constitution but also showed the urgency of it.  The 2010 Constitution of Kenya  has established new systems of governance. This paper examines two things: first, the extent to which the governing institutions have been redesigned and restructured; and second, the extent to which the redesigned and restructured institutions have addressed Kenyans’ pressing social political and economic problems. The paper argues that the 2010 Constitution of Kenya has addressed many of the governance problems experienced in Kenya since independence, but more so has created new structures that will make the government more accountable and transparent, and which, together with the optimism of a new constitution, provide the country with a renewed sense of “rebirth” and a new beginning for the country.
The Presidency and Public Authority in Kenya's new Constitution
by Ben Sihanya | WP no. 2


The role of the presidency in Kenya has animated and dominated popular and political discourses and processes since 1963. This study pursues a structured juridical-academic and policy discourse on the presidency in Kenya through four inter-related issues. First, the study reviews the evolution of the office of the presidency in Kenya, since 1963. Second, the paper explores the various types of bureaucracy based at State House or centred on the presidency (Cabinet, the provincial administration and State House). Third, it assesses the impact of the presidency and the associated bureaucracy on public authority and public administration. Finally, the study evaluates the impact of the Constitution of Kenya 2010 on the presidency, public authority and public administration, and assesses other constitutional institutions like the Judiciary, Parliament and the restructured Executive. These are explored in light of the impact these institutions are likely to have on the presidency.
Restructuring the Provincial Administration: An Insider's View
by Obuya Bagaka | WP no. 3


Although critics of the Provincial Administration argue rightly that it has been corrupt, repressive and unaccountable, the 2010 Kenyan constitution has accorded it to play complex and indispensable administrative roles than ever before. It will coordinate inter-ministerial duties, manage the relationship between the national and county governments, and monitor the implementation of national policies and utilisation of funds. However, it must focus on service provision, advance public interest rather than self or regime interests, and stay above inter- and intra-governmental conflicts, to remain relevant. 
Devolution in Kenya's new Constitution
by Othieno Nyanjom | WP no. 4



Kenya’s 2010 Constitution declares equity to be an underlying principle of governance in the country, which is consistent with its provision for devolution. The main purpose of this working paper, is to inform about the administrative and institutional structures with which to undertake devolution. The paper makes an extensive detour into the history of Kenyan political economy to explain how governance has built on the country’s agro-ecological differences to arrive at the vast socio-economic inequalities that fuel demands for devolution. Kenya’s search for cohesive national development,  will fail if there is not a nationwide appreciation of the history of our contemporary inequalities, which are at the root of Kenyans’ great hope in devolution.
Public Finance under Kenya's new Constitution
by Njeru Kirira | WP no. 5


This paper examines the new changes introduced in the new Kenya's constitution with regards to public finance. Through an examination of the experiences of other developing states, it makes policy and legislative suggestions on how to remedy the short- comings of the new system of public finance. The paper argues that all current public finance laws and regulations need to be overhauled, but this should be preceded by legislation on the role of the Treasury and the Parliament. Moreover, Kenya needs to build new institutional and administrative structures to manage public finance, and the new Constitution presents this opportunity. However, this is not the time to experiment. Kenya does not need reinvent the wheel. Kenya can learn from the experiences of some developing countries, without carbon-copying their systems.
Elections, Representations and the new Constitutions
by Adams Oloo | WP no. 7


Elections are a very important aspect of democracy any constitution should ensure that the electoral system is not only representative, but also inclusive. The old constitution had a number of factors that inhibited fair and inclusive representation: (ex. no mention about the required number of constituencies in the National Assembly; no reserved seats for special groups such as women, the disabled and minorities; the First Past the Post System facilitated candidates with minority votes). The new constitution has addressed some of these problems; however, we argue in this paper that more legislation on the electoral system is needed, if Kenya’s electoral system is to be truly representative and inclusive. These include the adoption of a mixed electoral system and legislation on descriptive representation to ensure that all minorities have a voice in the representative bodies.
The Legislature: Bi-Cameralism under the new Constitution
by Kipkemoi arap Kirui and Kipchumba Murkomen | WP no. 8



The aims of this paper are threefold. First, the paper retraces the history of the Kenyan legislature before and after independence tracking the various transformations spanning a century of its existence. Second, the paper critically examines the reasons why Kenya, after only four years of independence, reverted to a state with a unicameral parliament. It is worth noting that at independence the framers of Kenya’s Constitution opted for a Westminster-style bicameral legislature under a quasi-federal system. Finally, this paper looks at the changes envisaged by the new Constitution of Kenya, and in particular the provisions relating to the reintroduction of the Senate. The paper critically examines the re-designed structure of the legislature and how the different components will interact with each other.
Public land, historical land injustices and the new Constitution
by Paul Syagga | WP no. 9



This study examines the genesis of public land ownership and its disposition in the post-colonial era, how this has disadvantaged some sections of society and given rise to claims of historical land injustices. From this analysis, the study makes proposals on how best to redress historical land injustices and disputed land allocations, as well as the institution of an effective National Land Commission as envisaged by the Constitution. The study makes four significant recommendations: 1. The public must be sensitized through civic education on the benefits of land reform; 2. The National Land Commission should be sufficiently funded, be accessible to the public, and be empowered to impose significant penalties; 3. The establishment of a Land Claims Tribunal  is recommended to handle land restitution claims; 4. Redistribution and resettlement programs must be guided by a legal framework that ensure fairness and transparency. 
Challenges of Nationhood: Identities, citizenship and belonging
under Kenya's new Constitution
by Steve Ouma Akoth | WP no. 10



Through the concepts of identity, citizenship and belonging, this paper explores the attempts in Kenya’s constitution-making process to confer unitary citizenship to all Kenyans in a context of competing pluralities. The paper argues that the political determinist project of constructing unitary citizenship, which was informed by the post- colonial period, was grounded in the desire to create a balance among the various identities that influence how diverse individuals and groups experience and exercise citizenship in Kenya. Whereas the Bill of Rights in Chapter Four of the new Constitution can be viewed as an attempt to generate some sort of perpetual peace, it is the attempt to balance ‘civic citizenship’ against ‘cultural citizenship’ that stands out as providing an avenue for further contestations. The questions posed at the end of the paper invite reflection on politics beyond the sovereignty of the various cultural formations and mis-governance, both of which have ailed Kenya for 20 years at the expense of statecraft.