This is a body of the basic rules and principles by which a society has resolved to govern itself or regulate its affairs. It contains the agreed contents of the political system.
It sets out the basic structure of government. A Constitution may be written or unwritten.
Constitutions may be classified in various ways:
1. Written and Unwritten
2. Republican and Monarchical
3. Presidential and Parliamentary
4. Rigid and Flexible
The Kenyan Constitution is written. It was enacted by the English parliament in 1963 for purposes of granting Kenya independence. It has been amended many times.
Section 3 (1) (a) of the Judicature Act recognizes the Constitution as a source of law of Kenya. It is the fundamental law of the land and prevails over all other laws. It is the supreme law.
SUPREMACY OF THE CONSTITUTION
The supremacy of the Constitution as source of law is manifested in various ways:
1) All other laws derive their validity from the Constitution
2) It proclaims its supremacy. Section 3 of the Constitution provides inter alia (among other things) “The Constitution is the Constitution of the Republic of Kenya and shall take the force of law throughout Kenya, if any other law is inconsistent with this Constitution, this Constitution will prevail and the other law shall to the extent of its inconsistency be void”
The phrase “any other law” used in Section 3 of the Constitution was interpreted in Okunda and Another v. R (1970) to mean any other law be it international or national.
In this case, the High Court was called upon to determine which law was superior between the Constitution of Kenya and the Official Secrets Act of the East African
Community. The court was of the view that Section 3 places beyond doubt the pre-eminent character of the Constitution.
3) Organs of government:The Constitution creates the principal and other organs of government. The Legislature, Executive and the Judiciary owe their existence to the
Constitution. Additionally the Constitution creates other bodies and offices e.g.
The Electoral Commission (ECK was disbanded and replaced by the Interim Independent Electoral Commission of Kenya after the 2007 general election debacle).
Judicial Service Commission
Public Service Commission
Offices of the AG, Auditor General and the Commissioner of Police are created by the Constitution
4) Amendment procedures:The Constitution has a special amendment procedure. Under Section 47 (1) of the Constitution, parliament is empowered to alter the Constitution. However a Bill seeking to alter the Constitution must be supported by not less than 65%
of all the members of parliament excluding the ex-officio members during the 2nd and 3rd readings 3.
5) Fundamental rights and freedoms: The Constitution of Kenya guarantees the fundamental rights and freedoms of an individual. Chapter V of the Constitution is devoted to the rights and freedoms which are exercisable, subject to:-
a. The rights and freedoms of others
b. Public interest
The rights Guaranteed by the Constitution
1. Right to life – Section 71(1)
2. Right to personal liberty – Section 72 (1)
3. Right to property – Section 75 (1)
4. Right to protection of law – Section 77
Freedoms Guaranteed by the Constitution
1. Freedom of conscience e.g. freedom of thought and of religion
2. Freedom of assembly and association e.g. freedom to form trade unions
3. Freedom of expression
4. Freedom from arbitrary search of a person, his property or entry into his premises
5. Freedom from slavery and servitude
6. Freedom from torture, degrading, inhuman or other punishment
7. Freedom of movement
8. Freedom from discrimination or discriminatory laws