CLA News / Kenya’s Unending Journey to Constitutional Independence by Maria Mbeneka


The clamour for a constitutional change in Kenya started before independence and peaked in the late 1990s. Indeed, the fight for independence in Kenya is well-known and documented. It was a violent and painful struggle, culminating in what they touted as freedom from the colonial masters. As every young nation is expected to experience, Kenya went through a metamorphosis that saw the country aggressively push for economic freedom, education and unification of the people. This was dampened by the one-party state rule which was imposed in Kenya following a departure of ideology between the founding Father Jomo Kenyatta and the late Jaramogi Oginga Odinga, the first Vice-President of Kenya and other political leaders and leading figures such as Bildad Kaggia, J.M. Kariuki, Pio Gama Pinto among others.

In the 1980s and 1990s, the one-party rule of the KANU regime presided over illegal arrests and detention of anyone who did not toe the government’s line. One must be alive to the 1982 Coup, which shook the country and saw the birth of the iron-fisted rule of the country’s second President, Daniel Arap Moi. The following events led to the most atrocious human rights abuses characterized by forced disappearances, murder of political elite and common citizens, and detention and torture of university students, scholars and activists. These actions by the government of the day were meant to suppress the clamour for multi-party politics and a change of the then constitution, and free Kenyans from the oppressive economic policies of the KANU regime.

This fight for constitutional change saw the country brace government-sponsored tribal clashes that saw thousands of citizens killed, brutalized, maimed and evicted from their homes. In 1997, there was a political rally dubbed “Saba Saba”, which is simply “Seven Seven”, as they held it on the 7th of July of that year. What started as an opposition political rally to push for constitutional change degenerated into a running battle between the police and Kenyans; the brutality unleashed on the protestors across the country was unprecedented. However, Kenyans persisted, and eventually, after a few years, in 2002, at the end of the Moi era, a democratically elected government took over the reins.

In 2010, we promulgated the new constitution against the backdrop of the very vicious clashes of 2007 following a disputed electoral outcome by Raila Odinga against the sitting President Mwai Kibaki. The bloodshed and havoc witnessed due to the violence unleashed by communities against each other was shocking. It remains vivid in the minds of the affected families and is often invoked in political undertones whenever there is tension between political factions. The International Criminal Court (ICC) indicted former President Uhuru Kenyatta and current President William Ruto for crimes against humanity. Also indicted was the former Commissioner of police and a radio presenter for their different roles in the violence that split the country.

Our history is intertwined with twists and turns that confound political scientists and commentators. Uhuru and Ruto were elected despite their charges hanging over their heads and went on to rule for ten years. Both times in 2013 and 2017, the main challenger, Raila Odinga, disputed their election. The Kenyan Supreme Court nullified the 2017 election and ordered a re-run, which Mr Odinga declined to participate in. In the recent 2022 elections, Raila Odinga lost to William Ruto, and the challenge was placed before the Kenyan Supreme Court. This challenge was decided in favour of Mr Ruto, thus declaring him the 5th Republican President of Kenya.

What has followed the election of President Ruto has been harsh criticism from his main competitor Raila, which started immediately after the court pronounced itself on the outcome of the election petition. In a hotly contested election with a narrow margin to declare the winner, the mood in the country has been dampened. On the one hand, 8 million Kenyans eligible to vote did not participate in the August 2022 elections. Another 6.7 million voted for Mr Odinga. The ruling Kenya Kwanza coalition, elected on the “hustler” narrative, has not been scoring well on the economic blueprint of their manifesto.

The recent Finance bill, widely opposed by the citizens, was passed in parliament and assented to by President Ruto. This Act has since been suspended by the High Court and has grown increasingly unpopular daily. The cost of living has been driven up by the ever-increasing cost of fuel, which negatively affects food prices, production, electricity and other essential services. The President’s decision to hire 50 additional public servants to a position already challenged constitutionally has not boded well for a citizenry that is yoked with the high cost of living. It is no wonder, therefore, that what was simmering discontent has become an open revolt against a sitting government deemed blind and insensitive to the plight of its people.

Since the Kenya Kwanza government took power, there has never been a peaceful protest that was not met with police brutality and unnecessary force. In fact, with every peaceful protest protected by Article 37 of the constitution of Kenya, the government has threatened dire consequences against the people, and the police have killed, maimed and illegally detained hitherto peaceful protestors. Children have been teargassed in schools, and tactical teams have been unleashed on the population with one horrific consequence-death.

A once thriving democracy is slowly but surely being stripped away with every police bullet aimed at its citizens. With every tone-deaf executive fiat, clothed in the tyranny of tribal conclaves, we rob this country’s soul; with each oppressive economic measure, the patriotic spirit is suppressed. The Constitution is under heavy assault, and the citizens of Kenya are trying to protect it from the very people they bestowed their power upon to rule.

Author: Maria Mbeneka, CLA Treasurer and Council Member for Kenya

Designation: Managing Partner

Organisation/Law Firm: Mbeneka Law

Email Address:

Country: Kenya