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'Constitutions without constitutionalism' and judicial leadership in Kenya

Gayoye, Martha

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Abstract

Judicial leadership and 'constitutions without constitutionalism' are two opposing but useful concepts to demonstrate the oppositional stance taken by a minority of judges in safeguarding the rule of law in Kenya. Okoth-Ogendo accused African states of adopting constitutions not for the sake of rule of law, but to consolidate their hegemonic power through law-what Issa Shivji referred to as 'rule by law'. I conducted an empirical study on the role of courts in constitution-making in 2018. At the time, the conversations were focused on persistent constitutional problems that garnered immense public-interest litigation: the two-thirds gender principle, and the right to housing. After the empirical study, I followed the trajectory of these judges, some of whom were involved in the subsequent Building Bridges Initiative Case on constitutional amendments by popular initiative. For this reason, I focus on adjudicatory leadership, not only in the two themes of the two-thirds gender principle, and the right to housing, raised in the 2018 study, but also on the BBI cases in constitutional amendments. A central theme is the retaliatory backlash against these few oppositional judges involving huge personal and professional sacrifices.

Citation

Gayoye, M. (2024). 'Constitutions without constitutionalism' and judicial leadership in Kenya. Journal of Eastern African Studies, 18(3), 345-365. https://doi.org/10.1080/17531055.2024.2375076

Journal Article Type Article
Acceptance Date Jun 25, 2024
Online Publication Date Jul 14, 2024
Publication Date Jul 14, 2024
Deposit Date Aug 21, 2024
Publicly Available Date Aug 21, 2024
Journal Journal of Eastern African Studies
Print ISSN 1753-1055
Publisher Routledge
Peer Reviewed Peer Reviewed
Volume 18
Issue 3
Pages 345-365
DOI https://doi.org/10.1080/17531055.2024.2375076
Keywords Kenya; constitutions without constitutionalism; judicial leadership; politicisation of the judiciary
Public URL https://keele-repository.worktribe.com/output/858713
Publisher URL https://www.tandfonline.com/doi/full/10.1080/17531055.2024.2375076

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https://creativecommons.org/licenses/by-nc-nd/4.0/

Copyright Statement
© 2024 The Author(s). Published by Informa UK Limited, trading as Taylor & Francis Group. This is an Open Access article distributed under the terms of the Creative Commons Attribution-NonCommercial-NoDerivatives License(http://creativecommons.org/licenses/by-nc-nd/4.0/), which permits non-commercial re-use, distribution, and reproduction in any medium, provided the original work is properly cited, and is not altered, transformed, or built upon in any way. The terms on which this article has been published allow the posting of the Accepted Manuscript in a repository by the author(s) or with their consent





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