The Avid Readers’ Forum hosted a webinar on 25 June 2025 focusing on civil and political rights. Moderated by Ruth Jebet, the session featured Mr Evans Ogada, Constitutional and Administrative Law Litigation expert. The discussion explored the progress, challenges, and future of Kenya’s Bill of Rights, judicial enforcement, state practices, and the role of legal education in advancing constitutionalism.
Opening Remarks
Professor J Osogo Ambani, Dean at Kabarak Law School, noted that the discussion ushered in the first in a series of webinars celebrating the upcoming 15th anniversary of Kenya’s Constitution on August 27, 2025. He shared that part of the celebration included a student-led book project on the 40 articles of the Bill of Rights, which would be launched during in a commemoration conference from 25 August to 27 August 2025.
Professor Ambani framed the Constitution’s journey as an iterative process, equating it to raising his 15-year-old son, requiring constant vigilance, correction, and public engagement. He reflected on the optimism surrounding the Constitution’s promulgation in 2010, expecting it to mark a clear break from the past. However, he noted that progress had been uneven, with persistent issues like abductions and unaccounted disappearances, hence underscoring the need for sustained advocacy to ensure realisation of the Constitution’s promises.
Reflections on Civil and Political Rights
Mr Ogada provided a historical and legal framework for understanding civil and political rights, tracing their origins to the 17th and 18th-century constitutional developments. He described Kenya’s Bill of Rights as both prescriptive- declaring shared values- and procedural- establishing governance structures. He opined that these rights empower individuals while restraining state overreach.
Mr Ogada offered a critical assessment of the Kenyan Judiciary’s handling of first-generation rights. He praised early post-2010 rulings for instilling hope through predictable and principled decisions. However, he noted a subsequent decline, citing problematic rulings such as the security amendment laws decision and inconsistent bail and bond judgments. He criticised the Judiciary for failing to engage deeply with constitutional provisions like on freedom of expression under Article 33 of the Constitution, which he argued was broader than mere speech and required nuanced interpretation. Mr Ogada observed a lack of disciplined reasoning on Article 33 when the Judiciary often ignored internal qualifiers like Article 33(2), excluding hate speech and incitement. Further, the Article 24 proportionality tests, derived from South Africa’s S v Makwanyane and Another (CCT3/94) [1995].
Concerning the same, he cited Joseph Njuguna Mwaura & 2 others v Republic [2013] KECA 541 (KLR), where the court upheld the death penalty without addressing dignity or cruel treatment concerns, showcasing shallow constitutional analysis. Mr Ogada further urged the Judiciary to adopt rigorous reasoning to curb state impunity, including arrests without warrants or prolonged detentions.
State power and rights violations
Mr Ogada addressed state-backed abductions and forced disappearances, referencing incidents such as Albert Ojwang’s arrest and murder in police custody. These practices violate constitutional due process in Article 49 of the Constitution and international human rights law. Furthermore, he drew parallels with the Weimar Republic (1919-1933), where a progressive constitution was undermined by political interference, outdated laws, and unofficial state actions. Mr Ogada noted that despite the Sixth Schedule of the Constitution mandating pre-2010 laws be interpreted in light of the new Constitution, there were persistent failures to align current laws with constitutional values. In his view, politicians were in the wrong for prioritising power over constitutional duties, likening their resistance to the Ulysses myth, where binding to the mast symbolises constitutional restraint.
Mr Ogada warned that unchecked state actions create a chilling effect on freedoms of expression and the media (Article 34). He acknowledged the media’s challenges, including reduced funding, but praised social media for filling gaps left by mainstream outlets. According to him, responsible social media use has empowered citizens and journalists to highlight rights abuses. However, he condemned state attempts to regulate online speech through vague laws like the Computer Misuse and Cybercrimes Act (2018), used to intimidate the youth. Media and digital platforms expand civic space but face threats from state overreach, necessitating vigilance.
Mr Ogada underscored the role of legal education in fostering awareness and advocacy for civil and political rights. He lamented that there were inadequate research tools and outdated library resources in public universities, which hinder scholarship. A call for continuous learning was encouraged, citing pioneers like Senior Counsel Pheroze Norwojee and Honourable Martha Karua. He challenged young lawyers to deepen their understanding of constitutional law to prevent the Constitution from suffering the Weimar Republic’s fate.
On equality and non-discrimination, Mr Ogada noted stalled progress, attributing this to flawed constitutional interpretation, relying on outdated common law rules rather than the purposive and living tree approaches mandated by the Constitution. He referenced Rai & 3 others v Rai & 4 others [2013] KESC 20 (KLR), where Former Chief Justice Willy Mutunga defined the Constitution’s transformative intent, and criticised Parliament’s failure to implement gender parity formulas proposed by scholars like Professor Kameri Mbote.
He also highlighted the neglect of marginalised groups’ rights under Article 54 and Kenya’s lagging compliance with treaties like CEDAW. Mr Ogada acknowledged the African Court on Human and Peoples’ Rights and UN Human Rights Committee’s efforts but noted that Kenya’s “toxic culture of bad manners” undermines their impact. In his view, the government’s failure to implement the Ogiek judgment, requiring Katiba Institute to seek judicial enforcement and political interference in ICC cases, is a good example of non-compliance.
Comparatively, Mr Ogada suggested that Kenya should emulate countries with strong constitutional conventions, where public officials resign over ethical breaches to preserve public trust. He contrasted this with Kenya’s culture of impunity, where convicted individuals remain in Parliament. A culture of Ubuntu, he averred, should be embraced to foster accountability and reject tribalism or corruption-driven favouritism.
Q & A session
The Q&A session addressed several concerns, with the questions touching on executive interference in the judiciary, constitutional interpretation, right to protest, judicial resistance, and internal challenges.
In response, Mr Ogada noted that the deliberate underfunding of the Judiciary, despite the constitutional Judicial Fund, was a form of executive interference. He urged the Judiciary to combat internal corruption and maintain public trust to counter political overreach. Here, he emphasized Article 2(4) on the supremacy of the Constitution, purposive and living tree approaches under Article 259(1) and Article 259(3) of the Constitution, respectively. Further, he suggested that cases like Edwards v Canada (1930), should guide interpretation. Ogada also reiterated that the Weimar Syndrome was the deliberate undermining of a progressive constitution through political tactics, outdated laws, and poor judicial reasoning.
On judicial resistance and the limitations clause (Article 24), he criticised the ruling on military deployment during Gen Z protests, arguing they misapply constitutional tests. He viewed the limitation clause as a safeguard if applied rationally, but a loophole when abused for political expediency. Mr Ogada stressed that the Judiciary should address corruption and capacity issues internally, as public trust is its currency, while urging lawyers to elevate legal discourse and avoid lazy reliance on outdated rules. He linked the ongoing restrictions on protests to democratic backsliding, and warned of economic and reputational losses, noting concerns from UN officials about Kenya’s civic space.
Closing remarks & vote of thanks
Ogada concluded by emphasising the Judiciary’s role in constitutional review to enforce the Constitution’s supremacy. He warned against the Weimar Syndrome, urging rigorous judicial reasoning and public vigilance to preserve the Constitution.
In a vote of thanks, the Avid Readers’ Forum Convener, Mr Elisha Ongoya, reinforced the need for eternal vigilance, encouraging young people to embody “good manners” in personal and professional conduct to advance constitutionalism. He praised the Katiba@15 webinar series for providing a vital platform for intellectual discourse and urged continued engagement. He expressed gratitude to the new look Avid Readers’ Forum, led by Mr Cedric Kadima, and thanked Mr Ogada for making time to contribute to the webinar’s success.
Ruth Jebet, the moderator and co-coordinator, concluded the session by thanking all participants and welcoming them to the next webinar on second-generation rights.
