Transformative constitutionalism, legal culture and the judiciary under the 2010 constitution of Kenya

Abstract

This thesis is an interrogation of the concept of transformative constitutionalism; an idea developed in South Africa by American scholar Karl Klare. I seek to explore whether a project of transformative constitutionalism may contribute to the transformation process in Kenya under the newly promulgated 2010 constitution. My suggestion of transformative constitutionalism is only as one of various other mechanisms that Kenya could adopt towards the transformation of society. I argue that even before getting into the issues surrounding transformative constitutionalism, a historical analysis of Kenya s development is necessary. The project must proceed on an understanding and appreciation of this background for it to make meaningful gain. Hence this thesis makes calls for a constitutional conversation that more directly connects between historical experiences and transformative constitutionalism. I engage with various scholars on their views of transformative constitutionalism and the development of the notion from Klare s discussion. These discussions are important for Kenya to pick up from the scholarly views and ideas that may drive the transformation process. In this regard, from a discussion of South African authors I realise that it would be unwise to insist on a conclusive definition of transformative constitutionalism. Instead, I agree with views expressed that the concept deals with requires a more open acceptance that there may be more than one plausible understanding of transformative constitutionalism so as to ensure that the project remains relevant for future generations. While I argue that transformative constitutionalism has had benefits in South Africa that Kenya can enjoy, I also warn that Kenyans should not take it as fool proof guarantee of legislative transformation. The project suffers from certain pitfalls that render it ill-suited to delivering full and radical transformation. For this reasons I argue that cautious optimism is needed. Amongst these challenges and limitations is the disconnection between a formal conservative legal culture of the Kenyan judiciary and the progressive spirit required by the 2010 constitution. I argue that unless the judiciary in Kenya can transform and rid itself of this conservative legal culture, there is a potential danger in the transformation process slowing down or even failing.