Keynote address by Gitobu Imanyara

Commemorating the Fifteenth Anniversary of the Constitution of Kenya, 2010 at Kabarak University, 25 August 2025

Dean, Faculty and students of Kabarak University Law School, distinguished guests, friends.

Good morning.

I remember a small room with a steel door. A plate slid in, metal against concrete, then quiet. In that quiet I learned what the law is when power has no guardrails. It is breath. It is whether a citizen can write to a newspaper, stand in a crowd, or argue a case without fearing a knock at night. Many Kenyans carried that memory through detention, exile and grief until, in 2010, we turned it into law. We did not receive a favour. We wrote the terms on which power would be held.

My claim is simple. The 2010 Constitution is a people's covenant. If we treat it as technical text and ignore its values, we will keep the letter and lose the country. Our work, fifteen years on, is to make the spirit audible in government offices, courtrooms, newsrooms and neighbourhoods. I speak as someone who has paid a price for speech, and as someone who has seen this country choose to keep faith with itself.

I. The anchor, the promise, and why it still matters

Article 1 says all sovereign power belongs to the people. Government only holds it in trust. Article 10 sets the conditions of that trust. Human dignity. Participation. Transparency. Accountability. Those words are not decoration. They are the brakes and the steering. They are how we prevent the return of the room with the steel door.

Courts have said this clearly. In Orange Democratic Movement Party and 4 others v Speaker of National Assembly and 5 others [2024] KEHC 11494, Constitutional Petition E491 of 2023 (Consolidated) (24 September 2024), the High Court nullified the Privatisation Act, 2023 because there was no reasonable, meaningful and effective public participation, and Parliament's oversight had been sidestepped. In plain English, there is no shortcut around the citizen. If public assets or the public purse are in play, the public must be in the room, and Parliament must do its work. That holding put a lock on the back door of the Treasury.

The same ethic protects our institutions from being bypassed. When the Executive tried to reform policing by creating a parallel taskforce, the Court stopped it in Magare Gikenyi v Attorney General and 6 Others, Constitutional Petition E048 of 2023 (10 April 2025). The policing taskforce usurped the mandate of the National Police Service Commission. The principle is basic. If the Constitution or statute creates a body for a task, reform must pass through that body, not around it. This is not pedantry. It is how uniforms remain answerable to the law rather than to committees in the Office of the President.

Institutional fidelity also guards the public accounts. A flashy title cannot trespass onto the lane of the Auditor General. In Magare Gikenyi and Eliud Matindi v Attorney General and Others, interim ruling (9 July 2024), the High Court suspended the Public Debt Audit Taskforce with conservatory orders because it encroached on Article 229. Checks and balances are not ornamental. They are working parts of the engine.

These holdings are not victories for litigants alone. They are practical lessons on how a republic behaves. The people lend power. Institutions hold it carefully. Participation is not a courtesy, it is a condition. Procurement is not paperwork, it is constitutional law doing its day job. Devolution is not a nuisance, it is the people's choice to live nearer to power.

When a country forgets that grammar, daily life pays the cost. A parent at the school gate. A patient at a dispensary. A small publisher who lives or dies by advertising. A trader who needs a licence and meets a national directive that the county cannot lawfully implement. The Constitution is not a museum piece. It is a tool. It should leave fingerprints.

II. Where practice keeps slipping, and what the cases teach

If the anchor is firm, practice still drifts. Four habits keep pulling us off course. The bench has had to steer us back, and citizens have joined that work on the streets and in the courts.

First habit. Shortcuts that cut out the public.
We have seen complex social policy rolled out by press conference, then hurried through the back door. When a new university funding model was unveiled without constitutionally required processes, the High Court, in Kenya Human Rights Commission and 3 Others v Attorney General and 4 Others, Constitutional Petition E412 of 2023 (20 December 2024), struck it down for procedural and substantive defects. The Court of Appeal later stayed that judgment, but the warning stands. Social rights policy cannot be drawn in darkness. Students, parents, lecturers and taxpayers are rights holders, not bystanders.

Health reform told the same story and yielded the same lesson. In Enock Aura v Cabinet Secretary, Ministry of Health and 11 Others, Constitutional Petition E473 of 2023 (12 July 2024), a three-judge bench invalidated the Social Health Insurance Act, the Primary Health Care Act and the Digital Health Act for lack of meaningful public participation. The Court did not block reform. It told the State to reform lawfully, with citizens in the room. Rights are not a slogan. They are a method.

A similar commitment to method appears in our digital shift. Consider parents told to pay school fees only through eCitizen, and to absorb a KSh 50 fee with no legal footing. In Magare Gikenyi v Cabinet Secretary, National Treasury and Economic Planning and 5 Others, Constitutional Petition E059 of 2024 (1 April 2025), the High Court called the directive unconstitutional and irrational. Go digital, yes, but ride on legal rails. Innovation that tramples rights is not progress. It is power without consent.

Second habit. Parallel structures that hollow out institutions.
Where a lawful body exists, the temptation is to create a taskforce to do its work. Courts have drawn a firm line. Law Society of Kenya v Attorney General and 26 Others, Constitutional Petition E355 of 2024 (6 February 2025), annulled the Khama Rogo Health Human Resources Taskforce for duplicating a statutory institution. Reform is legitimate when it strengthens the house, not when it builds a bypass. The same message came from the policing case and the public debt case. Institutional hygiene matters because it keeps power tethered to law.

Third habit. Centralising impulses that smother devolution and fair markets.
Devolution is a constitutional settlement, not a mood. When the Interior Ministry tried to impose a unilateral liquor licensing directive, the High Court in Njoroge and 2 Others v Ministry of Interior and 2 Others, Judicial Review Application No. 2 of 2024 (7 April 2025), quashed it as unconstitutional and as a breach of county powers. Even well-meant crackdowns must follow the Fourth Schedule. Order without lawfulness is not order.

The market for information is part of our democracy. When a directive funnelled government advertising to KBC alone, it threatened media pluralism and flouted procurement rules. In Law Society of Kenya v PS Edward Kisiang'ani and Attorney General, Constitutional Petition E182 of 2024 (20 March 2025), the High Court invalidated the directive for lack of legal basis and for breaching procurement norms. You cannot starve independent media of revenue through an unlawful policy. Procurement law protects fairness in the marketplace of goods and in the marketplace of ideas.

Public concessions and licences sit in the same family of obligations. Interim orders halted the proposed 30-year JKIA lease to Adani in Law Society of Kenya and Kenya Human Rights Commission v Kenya Airports Authority and Others, interim orders (10 September 2024). The runway to legitimacy still passes through competitive tender and real participation. The Supreme Court wrote the lesson in larger print in Okiya Omtatah Okoiti v Portside Freight Terminals and 13 others, Supreme Court (30 June 2025). It cancelled KPA's licence and wayleave for a grain terminal because the process failed the constitutional thresholds of transparency, accountability, fairness and competitiveness under Article 227. If public resources are at stake, the public rules apply. Always.

Fourth habit. Disrespect for judicial independence.
A republic breathes through compliance with court orders. Disagreement with a judgment should travel through appeals, reviews and good faith compliance. It should not morph into threats, budgetary strangulation or personalised attacks on judges. The jurisprudence I have named shows a Judiciary that has insisted on participation, institutional fidelity, devolved authority and clean procurement. That insistence is not obstruction. It is how rights survive. If we weaken courts, we teach officials that constitutional words carry no consequence. Then the plate slides under the door again.

These cases do not exhaust the problem, but they map it clearly. Shortcuts cut out the citizen. Parallel structures side-line institutions that the Constitution intended to stand between the public and power. Centralising impulses pull decisions back to Nairobi and punish dissent in the marketplace of ideas. Contempt for the bench undercuts the one forum where the weak can lawfully prevail against the strong. The repair begins with habits, not speeches.

III. Elections, IEBC, and the old temptation to fix politics by changing the rules

There is renewed talk of re-engineering our constitutional order under friendly names. The newest label is consensus democracy. It sounds warm. In our context it often means boardroom deals that soften the edge of electoral competition and make opposition less meaningful. That is not unity. It is insulation from voters.

The cure for political loss is better politics, not constitutional surgery. Elections are the hinge on which citizen sovereignty swings. If you want consensus, build it in the open, with the public in the room, through the lawful institutions the Constitution already provides. Chapter Six talks about integrity. Articles 1 and 10 set out sovereignty and national values. Article 255 sets the path for amendment. Use that path. Do not smuggle pacts that make voting ornamental and blur the line between government and opposition.

Independent commissions make elections meaningful. The Independent Electoral and Boundaries Commission carries burdens that start long before polling day. Boundaries. Voter registration. Campaign finance enforcement. Technology choices. Vendor selection. Each step can grow or kill trust. The jurisprudence on institutions and procurement gives us warnings and a map. Okiya Omtatah Okoiti v Portside Freight Terminals and 13 others, Supreme Court (30 June 2025), tells us procurement is constitutional, not clerical. Law Society of Kenya v PS Edward Kisiang'ani and Attorney General, Constitutional Petition E182 of 2024 (20 March 2025), tells us you cannot weaponise state advertising to punish media that scrutinise elections. If IEBC procurement and the wider information space obey Article 227, public confidence follows. If government communications treat all legitimate media as part of the public square, citizens can hear competing claims and make up their own minds. Elections breathe in that air.

Parliament must do its part. Appointments to IEBC should be done on time, under a framework that the public can see and trust. Funding should be predictable and protected. Procurement should be transparent. Litigation should be welcomed as a way to clarify rules in advance, not denounced as disloyalty. Political parties should train agents properly, publish their own tallies honestly and accept defeat when they lose. That culture is as important as any legal clause.

IV. Gen Z and the street as a classroom in constitutional method

Let me speak plainly about the young Kenyans who have recently taken civic action off the page and onto the street. Gen Z did two important things at once. They reminded the country that public participation is not a box to tick. They also forced the Executive to listen. The courts have been saying the same thing for years. ODM v Speaker locked the back door against secret lawmaking. Enock Aura and KHRC told the State to bring citizens to the table before redrawing health and education. Magare v CS Treasury scrapped a digital fee scheme imposed without lawful basis. Courts and citizens met in the middle. That is healthy constitutionalism.

To the young in this hall, many of whom were children in 2010. Keep going. Submit views on Bills. Read them first. Ask your Member of County Assembly what they did with your submission. File an access to information request. Join a public interest case if a right that you use daily is being reshaped without you. Vote. Organise. Hold peaceful assemblies. The right to be heard exists so that you can use it. It gets stronger the more you use it.

V. Devolution as the quiet revolution and how to strengthen it

Devolution is the promise that the people should live nearer to power. It is also a design to spread development fairly and to make governors answer to neighbours. The temptation to recentralise always returns, often dressed as order or efficiency. Courts have pushed back when that temptation turns into unlawful practice. Njoroge is a clean example. A national liquor directive fell because licensing sits with counties. Even a crackdown must follow the Fourth Schedule. If you want safety and health, use the right door.

The harder work now is finance. Counties cannot govern on promises. Delayed exchequer releases bleed hospitals, bursaries and water projects. Timely transfers are not a favour from the National Treasury. They are part of the architecture the people chose. Here is a practical list that would strengthen devolution without a single amendment.

Publish and keep a monthly disbursement schedule, and keep it. Ring fence the equitable share with an automatic transfer rule that triggers payment unless Parliament lawfully delays for specified reasons. Use conditional grants sparingly, and only with county consent and clear, measurable outcomes. Require a public notice when the National Treasury is in arrears beyond a set threshold, and allow counties to seek mandatory orders after a short grace period. Build a public dashboard that shows, county by county, the status of transfers and absorption. Encourage counties to adopt fiscal responsibility charters that set limits on pending bills and require quarterly reports in open sittings of county assemblies. Make intergovernmental dispute resolution faster and more transparent. Let the public see where every shilling goes. Devolution lives when money moves on time, and when citizens can follow the money.

VI. What is to be done

Now to the practical centre of my argument. What must we do, now, if we intend to honour the spirit and not only the letter of our Constitution.

Guard the independence of the Judiciary, without apology. Courts are not a special interest. They are the country's emergency brake. ODM v Speaker taught that power cannot spend the people's money without the people in the room. Enock Aura and KHRC reminded the State that social policy must be built with citizens, not on top of them. Magare v Attorney General and Law Society of Kenya v Attorney General warned the Executive against replacing independent bodies with hand picked taskforces. The Public Debt Taskforce suspension defended the Auditor General's lane. Obey court orders. Fund the Judiciary and the Judicial Service Commission on time. Stop personalising disagreement with judges. Litigate your case, then live with the result. The Republic breathes easier when that discipline holds.

Keep elections real. Resist attempts to edit the Constitution to make voting ornamental. Consensus democracy is a pleasant phrase that, in our context, often means boardroom deals that dilute the vote and deflate the opposition. Our law already supplies the guardrails. Sovereignty sits with the people. Participation and accountability sit in Article 10. Any proposal that blurs the line between government and opposition weakens the people's leverage. The cure for political loss is better politics, not constitutional surgery.

Back independent commissions, especially IEBC, with law and resources. IEBC's strength lies in its work long before polling day. Boundaries. Voter registers. Campaign finance. Technology and procurement. If these obey the Constitution, trust grows. The cases on procurement are a lighthouse. Portside says procurement of public resources is constitutional, not clerical. Kisiang'ani says you cannot re engineer the media market by unlawful directives that ration state adverts. Parliament should appoint commissioners on time and fund the Commission predictably. The Commission should publish procurement decisions and contracts in real time, with clear reasons. Parties should accept arbitration of disputes without trying to burn down the house that settled them.

Honour the citizen's voice, and recognise Gen Z's civic work. The youth led protests changed the national conversation. They forced the Executive to concede that participation is not a tick box. Courts and citizens pulled in the same direction. Keep showing up. Keep submitting views. Keep asking what changed after you participated. Participation becomes culture when citizens insist on it.

Strengthen devolution. Do not starve it. The law has already drawn the lines between national and county functions. Respect them. Where the lines are blurry, negotiate in public. Stop trying to run counties by circulars from Nairobi. Pay what is due, when it is due. If we want county leaders to be accountable, give them the funds and the clarity to be accountable for.

Keep procurement clean, across sectors. JKIA and Portside are reminders that the public cannot be edged out when public resources are at stake. Concessions, licences and long term contracts must meet the constitutional tests of fairness, equity, transparency and competitiveness. Publish tender documents and evaluation reports as a matter of course. Subject major concessions to legislative oversight for a defined period. Use independent monitors for high value projects. In disputes, bring the public to court early, not after the damage is done.

Protect a plural press. Democracy needs a noisy, independent press to keep us all honest. Kisiang'ani confirms that government cannot use procurement to punish criticism by rationing adverts to favoured outlets. Ministries and state corporations should advertise lawfully, competitively and transparently. Journalists should keep chasing tenders, because that is where values meet money.

Talk about money in plain language. State finances are tight. Social demands are real. The honest path is to explain what can be done and when, and to keep priorities steady. Citizens forgive a hard truth faster than a soft lie. Legitimacy loves candour.

Call out the fancy labels. Consensus democracy sounds kind. In practice it often means that elections do not matter and opposition is temporary. Courts have already warned us how shortcuts corrode trust. JKIA was paused because a public asset cannot be traded by stealth. Portside cancelled a concession because the public rules were ignored. You cannot claim to respect the people while removing the moments when they hold you to account. If you want consensus, build it in the open, through lawful institutions, not by erasing the referee and the scoreline.

VII. A short walk through history, so we remember why this matters

Those who came before us did not suffer for wordplay. They fought for freedoms that have to be used to stay alive. Freedom to speak so that the facts are not buried. Freedom of association so that citizens can stand together when alone they are easily broken. Freedom of the press so that the powerful do not choose which stories are told. Due process so that detention cannot be a tool of convenience. When a court today demands meaningful participation or stops a taskforce that invades an independent mandate, it is not being fussy. It is paying the debt we owe to those who pushed the door open in 2010.

Our Constitution is young but it is not fragile. It has faced attempts to amend it to suit the misfortunes of those who hold office. It has seen experiments in power sharing that promised peace while postponing justice. We should be honest about our history. Some bargains prevented collapse. Others became habits that corrode responsibility. The difference is easy to see. If a deal strengthens institutions, includes the public and is tested in lawful forums, it may be a bridge. If it weakens institutions, sidelines the public and is announced as a fait accompli, it is a cul de sac.

VIII. Closing

I began with breath. A good constitution gives a country room to breathe. The text gives us structure. The spirit gives us life. Keep the spirit, and the letter will take care of itself.

So let us keep faith with the promise of 2010. Guard the courts. Keep elections real. Fund and respect independent commissions, especially IEBC. Listen to the young, who have been teaching us a masterclass in participation. Pay counties on time and treat them as partners. Clean up procurement, not because donors demand it, but because justice demands it. Protect a plural press. And when you hear fine phrases that mean the vote will matter less tomorrow than it did yesterday, call them what they are, evasion dressed as wisdom.

Prof Yash Pal Ghai put it best. A constitution is about how we live together. May we choose to live together under rules we wrote, values we chose, and institutions we respect. May we be the generation that kept the door open for those who come after us.

Thank you.

Authorities and Reading

• Orange Democratic Movement Party and 4 others v Speaker of National Assembly and 5 others [2024] KEHC 11494, Constitutional Petition E491 of 2023 (Consolidated) (24 September 2024).

• Magare Gikenyi v Attorney General and 6 Others, Constitutional Petition E048 of 2023 (10 April 2025).

• Magare Gikenyi and Eliud Matindi v Attorney General and Others, interim ruling (9 July 2024).

• Law Society of Kenya v Attorney General and 26 Others, Constitutional Petition E355 of 2024 (6 February 2025).

• Kenya Human Rights Commission and 3 Others v Attorney General and 4 Others, Constitutional Petition E412 of 2023 (20 December 2024).

• Enock Aura v Cabinet Secretary, Ministry of Health and 11 Others, Constitutional Petition E473 of 2023 (12 July 2024).

• Njoroge and 2 Others v Ministry of Interior and 2 Others, Judicial Review Application No. 2 of 2024 (7 April 2025).

• Law Society of Kenya v PS Edward Kisiang'ani and Attorney General, Constitutional Petition E182 of 2024 (20 March 2025).

• Law Society of Kenya and Kenya Human Rights Commission v Kenya Airports Authority and Others, interim orders (10 September 2024).

• Okiya Omtatah Okoiti v Portside Freight Terminals and 13 others, Supreme Court (30 June 2025).