‘Constitutions without constitutionalism’ and judicial leadership in Kenya

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.