Constitutional LawConstitutionalism, the Rule of Law and Human Rights in Kenya’s Electoral Process

This article may be cited as;

Ben M. Sihanya (2013) ‘Constitutionalism, the Rule of Law and Human Rights in Kenya’s Electoral Process’ in (eds), Law Society of Kenya, ‘Handbook on Election Disputes in Kenya.’

This chapter rightly prescribes that in the Kenyan context, constitutionalism will be achieved only, as a starting point, where there is habitual acceptance by all, and adherence to principles and rules in the constitution, the rule of law and the supremacy of the constitution. Sihanya’s chapter also argues that one of the main problems with Kenya’s electoral process include the fact that the values, principles, policies, rules and institutions have tended to be manipulated, ignored or abrogated by those controlling the electoral security, administration and judicial process. Periodic violence around electoral cycles has been one of the consequences.

The chapter further argues that lack of proper entrenchment constitutionalism in Kenya has for a long time undermined resolution of electoral disputes. Disputes in respect of presidential poll invariably emerge following general elections. Provisions of the law meant to resolve such disputes have not been followed to the letter, or at all. He cites examples that demonstrate that instead, relevant provisions of the law have occasionally been interpreted in a partisan, mischievous, dishonest or cynical and criminal manner to favour political or ethnic elite in government keen on retaining power at all costs.

The author is emphatic that the Constitution of Kenya, 2010 has the potential to reverse trends and to secure free, fair, transparent accountable and verifiable elections. The author suggests that the struggle for human rights, the rule of law and constitutionalism must continue in order for electoral justice to be realized in Kenya.

To read or download the full chapter, click here.

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