‘Constitutions without constitutionalism’ and judicial leadership in Kenya

Gayoye, Martha

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 has been termed 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. (in press). ‘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
• Deposit Date: Jul 30, 2024
• Journal: Journal of Eastern African Studies
• Print ISSN: 1753-1055
• Electronic ISSN: 1753-1063
• Publisher: Routledge
• Peer Reviewed: Peer Reviewed
• Volume: 18
• Issue: 3
• Pages: 345-365
• DOI: https://doi.org/10.1080/17531055.2024.2375076
• Public URL: https://keele-repository.worktribe.com/output/880737
• Additional Information: Peer Review Statement: The publishing and review policy for this title is described in its Aims & Scope.; Aim & Scope: http://www.tandfonline.com/action/journalInformation?show=aimsScope&journalCode=rjea20; Received: 2022-09-21; Accepted: 2024-06-25; Published: 2024-07-14