Analytical View of People’s Involvement in Constitutional Review Process in Kenya and the Place of Natural Law
UNIVERSITY OF NAIROBI
SCHOOL OF LAW
COMMERCIAL LAW DEPARTMENT
COURSE: LECTURER: PRESENTED BY:
JURISPRUDENCE MS. EVELYNE ASAALA JUSTUS O. OMOLLO
ANALYTICAL VIEW OF PEOPLE’S INVOLVEMENT IN CONSTITUTIONAL REVIEW PROCESS IN KENYA AND THE PLACE OF NATURAL LAW
MAY 2013
Page | 0 Jurisprudence
Introduction
J.J. Burlamaqui defined natural law as a rule which so necessarily agrees with the nature and state of man that, without observing its maxims, the peace and happiness of society can never be preserved. Constitutions are deemed to be foundational documents and they assume the status of fundamental law until they are repealed. Natural law has penetrated into constitutions and the process of constitution making. The subject of this discourse is to explore the extent of penetration of natural law or the absence thereof in Kenya’s constitutional review process, placing focus on people’s involvement. Prior to the push for constitutional reforms in Kenya, there were constitutional amendments that ignited distaste among the citizenry. The 1982 constitutional amendment that made Kenya a de jure one party state however sparked off the offensive for constitutional review. The objective was achieved in 1991 following the repeal of Section 2A which restored multi-partism. Following sustained pressure from the opposition and civil society, the Constitution of Kenya Review Commission Act was enacted under the umbrella of the Inter-Party Parliamentary Group (IPPG) reforms. This ushered the formal constitutional review process 1. The Commission began its work of collecting the views of Kenyans between December, 2001 and July, 2002 when the process was temporarily put on hold due to the general elections. Kenya is a democracy in which representatives of the people are elected in a democratic electoral process. Among the elected leaders are the legislators who are mandated by the constitution to make laws. The legal framework for constitutional review was embodied in
SCHOOL OF LAW
COMMERCIAL LAW DEPARTMENT
COURSE: LECTURER: PRESENTED BY:
JURISPRUDENCE MS. EVELYNE ASAALA JUSTUS O. OMOLLO
ANALYTICAL VIEW OF PEOPLE’S INVOLVEMENT IN CONSTITUTIONAL REVIEW PROCESS IN KENYA AND THE PLACE OF NATURAL LAW
MAY 2013
Page | 0 Jurisprudence
Introduction
J.J. Burlamaqui defined natural law as a rule which so necessarily agrees with the nature and state of man that, without observing its maxims, the peace and happiness of society can never be preserved. Constitutions are deemed to be foundational documents and they assume the status of fundamental law until they are repealed. Natural law has penetrated into constitutions and the process of constitution making. The subject of this discourse is to explore the extent of penetration of natural law or the absence thereof in Kenya’s constitutional review process, placing focus on people’s involvement. Prior to the push for constitutional reforms in Kenya, there were constitutional amendments that ignited distaste among the citizenry. The 1982 constitutional amendment that made Kenya a de jure one party state however sparked off the offensive for constitutional review. The objective was achieved in 1991 following the repeal of Section 2A which restored multi-partism. Following sustained pressure from the opposition and civil society, the Constitution of Kenya Review Commission Act was enacted under the umbrella of the Inter-Party Parliamentary Group (IPPG) reforms. This ushered the formal constitutional review process 1. The Commission began its work of collecting the views of Kenyans between December, 2001 and July, 2002 when the process was temporarily put on hold due to the general elections. Kenya is a democracy in which representatives of the people are elected in a democratic electoral process. Among the elected leaders are the legislators who are mandated by the constitution to make laws. The legal framework for constitutional review was embodied in
References: Constitution of Kenya 2010, National Council for Law Reporting, Nairobi, Kenya. Kithure Kindiki, The Emerging Jurisprudence on Kenya’s Constitutional Review Law, Kenya Law Review Vol. 1, at p. 153. Final Report of the Constitution of Kenya Review Commission, (2004), Nairobi, Kenya. M.D.A Freeman, Lloyd’s Introduction to Jurisprudence, 7th ed, (2001) Sweet and Maxwell, London. Page | 5 Jurisprudence