Through the lens: Raila Odinga bestrode the landscape like a colossus

Morgan Heritage, in Nothing to Smile About, tell the contrast between the reality in Jamaica and what outsiders imagine.

They sing how a tourist from Norway wondered why most people wore angry faces. The visitor is shown the dark side of the country: hungry children, poor educational facilities, dilapidated infrastructure.

Sixteen years after the promulgation of the 2010 Constitution, the country is still dealing with State murders and disappearances, a tone-deaf Parliament, and a defiant Executive.

We posed the question of how we are faring to different generations of lawyers and constitutional experts. They all hailed Kenya’s supreme law as the most progressive.

“The current turmoil is not a breakdown; it is a catching-up. We wrote a social contract so bold and so visionary that we spent the last decade pretending it wasn’t real. Now, Kenya is beginning to align with what it promised itself. It’s not easy. Revolutions never are. But make no mistake – this discomfort was designed by the 2010 Constitution, which has 18 Chapters and each one is loaded,” says Abdullahi Khalif.

The lawyer insists the document took away authoritarianism, pointing to the Gen Z protests as proof that Kenyans do not need politicians’ permission to enjoy their rights.

Anti-government critics

“The political class is shaken. They don’t realise the Constitution has been whispering to the youth. In school, they learn about the Bill of Rights. Online, they see court decisions live-streamed. Whenever the courts stood up to power, or a public official was vetted or impeached, every time a petition succeeded, the message seeped deeper: You have power.”

Lawyer Paul Mwangi credits the Judiciary for expanding the scope of rights and upholding the Bill of Rights.

During the protests, Bernard Kavuli, Jamil Longton, his brother Aslam Longton, Bob Njagi, Billy Mwangi, Peter Muteti, Gideon Kibet, Ronny Kiplangat, Maurice Wambua and Rajab Mohamed were among those abducted for criticising the government. Today, they are in court fighting for the violation of their rights after a team appointed by President William Ruto to handle compensation against State brutality struck out their names. They say of the allocated Sh2 billion, only Sh 1.12 billion has been disbursed. Yet the 35 victims listed as abductees remain in the dark.

They described the authentication process as opaque. They say that, in direct contravention of the terms of reference under Presidential Proclamation No. 1 of 2026, the panel chaired by Prof Makau Mutua was working beyond their prescribed scope by collecting, processing and authenticating claims outside the 1,101 victims already verified by the Kenya National Commission on Human Rights.

Although that group lived to tell their stories, others have not. Businessman Joel Kariuki allegedly disappeared on June 18 this year after being taken by armed men in civilian clothes; Michael Oloo went missing on June 19; youth leader Maxmillian Kiarie was last seen on June 20; and Abdulaziz Molu was reportedly picked up on June 23. They remain missing.

Gen Z reawakening

Their cases concern breaches of the rights to security, life, and production before a court within 24 hours.

Lawyer Bobby Mkangi, a former commissioner in the nine-member Committee of Experts for Constitutional Review, says the assault on the Katiba began in 2013.

Despite this, one of the Constitution’s smile moments has been the pushback by ordinary Kenyans in its defence. Unfortunately, some lost their lives. The 29-year-old Rex-Masai, David Chege, Eric Shieni, Evans Kiratu, Beasley Kogi, Ibrahim Kamau, Kennedy Onyango and Denzel Omondi were among the 127 martyrs of the controversial Finance Bill, 2024 recorded by the Independent Police Oversight Authority.

Today their parents and kin remain in tears. Some were killed by bullets paid for through taxes and fired by trigger-happy officers.

Mkangi insists their blood will not perish; their names are engraved on the gilt edges of constitutionalism’s history. “One of the few things to smile about Katiba’s ‘Sweet 16’ is how, for the past 16 years, Kenyans have come out strongly to reclaim and defend the Constitution. This at great peril and despite the state’s blatant and incessant assault of the document and its anti-Katiba posture, especially since 2013. Most of all, the youth, of whom many lives, limb and properties have been lost, deserve most glory during this season. To me, that day was the fresh promulgation of the Constitution of Kenya, 2010; one of the few things that conjure a smile.”

Following the protests, several cases were filed against police brutality, the deployment of the Kenya Defence Forces and enforced disappearances. The Law Society of Kenya argued that the decision by then Defence Cabinet Secretary Aden Duale to deploy the military was illegal. Duale was accused of unilaterally calling military personnel from the barracks without following the law.

None of the protestors against the Finance Bill, 2024, were armed, LSK asserted, and nothing in the demonstrations amounted to an emergency.

 The lawyers argued that nowhere in the law does the military support the police in responding to an emergency. Duale’s actions, they claimed, were fanciful, designed to execute a purpose that does not exist in Kenyan law or the Constitution. The minister had no power to declare a state of emergency; only the president could do so.

“There is no demonstration that the National Police who have the principal Constitutional mandate of maintaining law and order for civilians in the country, or any other civilian security agency or authority, have been overwhelmed or are otherwise inadequate or incapable of dealing with any peaceful protests or any surges of violence, unrest, destruction or breach of critical infrastructure,” LSK stated.

Defending the gazette notice, the Attorney General argued that the purpose of placing the KDF on the streets was to deter crime and that the issue of a state of emergency could be litigated only before the Supreme Court.

Major Mohammed Mwinyi, for the military, relied on Article 241(3)(b) and Section 31 of the Kenya Defence Forces Act, which allow the disciplined forces to assist the police in emergencies and instances of public disorder. He noted previous deployments in similar situations and attributed the protests to social-media misinformation that fuelled youths with the alleged intention of overturning the government.

Michael Odongo’s daughter was not among the protestors. She was shot in the stomach by a police officer while playing. In his High Court case against the Inspector General of Police Douglas Kanja, the Attorney General Dorcas Oduor, the National Police Service Commission, Interior Cabinet Secretary Kipchumba Murkomen, the Director of Public Prosecutions and the Kenya National Human Rights and Equality Commission, Odongo explained that all was well until around 6pm when a bullet struck her. Although the day was marred by Gen Z protests, he and the girl’s mother were at work.

As protests intensified, police officers fired gunshots in broad daylight. The bullet, initially thought to be an object, hit her and forced her from the bicycle she was riding.

The court later barred officers from using excessive force and teargas during protests and ordered that they should not cover their faces. But this order, to date , has been ignored.

State terrorism

Former LSK president Eric Theuri says the Kenya Kwanza administration has effectively staged a coup against the 2010 Constitution. Goons, he says, are among the tell-tales of failure to adhere to its letter and spirit. Capture of the arms of government and independent institutions has undermined the checks and balances the Constitution created.

“I believe that the current government constitutes a present actual threat to the Constitution of Kenya. It has consistently proven that it considers itself above the Constitution. The State has sponsored and facilitated the use of goons as the primary weapon against political opponents and in the process elevated goons above law enforcement agencies. State-sponsored terrorism constitutes the gravest danger to the Constitution and the rule of law, without which we resort to anarchy.”

He blames “complete and total State capture” of oversight bodies for the lack of accountability as the Constitution demands. “The fact that Parliament has been severely compromised and the Judiciary rendered toothless through intimidation, budget cuts and corruption means that the Executive has conducted a coup on the Constitution and the Kenyan people.”

On the right to health, Kenya Kwanza abolished the National Health Insurance Fund and replaced it with the Social Health Authority. Today the scheme, along with the housing project, operates under temporary Court of Appeal orders.

Narratives about their introduction and sustainability remain sharply divided. The government claims they bring smiles to Kenyans; critics call them unnecessary, hurried burdens.

The health system shifted decisively in 2023 when President Ruto signed the Social Health Insurance Fund Act, the Primary Health Care Act and the Digital Health Act. He promised that no one would be denied healthcare and that the new Universal Health Care programme would end hospital fundraisers.

The project quickly became one of the most litigated issues in the country. Activist Joseph Enock Aura moved to court. Justice Chacha Mwita initially halted the three laws, but Court of Appeal judges Kathurima M’inoti, Mumbi Ngugi and Francis Tuiyott lifted the orders.

Unhealthy laws

Back in the High Court, Aura told Justices Alfred Mabeya, Robert Limo and Freda Mugambi that the overhaul was illegal for lack of proper public participation and because of disparities in the statutes. Former Health Cabinet Secretary Susan Nakhumicha defended the Acts as promoting Universal Health Coverage, with members contributing 2.75 per cent of income and the State covering those unable to pay.

The Mabeya Bench quashed the laws, finding the process hurried, that it failed to involve counties properly, and that it overlapped county roles in healthcare. The judges faulted sections 26(5) and 27 of the SHIF Act for infringing the right to emergency services and section 38 for having been introduced during debate without public participation. Although the intention was noble, the majority of Kenyans had not been allowed input.

Parliament was given 120 days to regularise the process; by 10 November, 2024 the laws would be moot if not sorted. The Health CS immediately appealed. Justices Patrick Kiage, Pauline Nyamweya and Ngenye Macharia suspended the judgement, ruling that countless Kenyans would be left without cover. The appeal was ordered fast-tracked but has still not been heard.

Four medical doctors—Clarence Eboso, Darwin Abuka, Cherono Siele and Bosibori Ondari—challenged the constitutionality of the deductions. Justice Mwita declined interim orders because the related appeal remained active, yet he ruled that the 2.75 per cent deduction from gross income constitutes double taxation and is therefore illegal. Only income tax may be withheld from gross income; any further deduction after PAYE is unlawful.

The doctors also raised concerns about Apeiro Ltd, linked to the Adani Group, holding the largest stake in a Sh104 billion consortium awarded the Integrated Healthcare Technology System contract. They argued that Kenya’s health data safety is not guaranteed given the jurisdiction’s poor privacy record.

Taxpayer rip-off

The scheme, they said, is inferior and expensive: Kenyans pay more for lower benefits. Employed persons with payslips are hit harder than businesspeople or the unemployed.

Dr Cherono, a paediatric registrar at the Moi Teaching and Referral Hospital employed by Kericho County, stated that her previous NHIF civil-servant cover was adequate. Under SHA her household will pay Sh21,000 monthly—Sh252,000 a year, 10 times the former contribution—while still facing out-of-pocket costs for medicines and tests because the annual household cover is only Sh43,000 against monthly treatment costs averaging Sh9,500. For Sh 250,000 one could obtain comprehensive private cover, even for pre-existing conditions.

Justice Bahati Mwamuye later found the SHIF law constitutional but held that rolling it out on 1 October 2024 before systems and technology were ready fell below constitutional standards; he directed progress reports.

Employment and Labour Relations Court judge Jemimah Wanza ordered SHA not to block employees whose deductions had not been remitted by the ninth-day deadline. Doctors Lawrence Mweresa, Azhar Abdul and Clare Otwoko complained that SHA charges interest on delayed payments yet has no refund process for out-of-pocket costs and fails to factor in emergency care.

 SHA CEO Mercy Mwangangi argued that allowing non-payers treatment would prejudice those who have cleared; the system rests on social solidarity.

The biggest constitutional test of the right to health came with the government’s reported agreement to quarantine US citizens infected with Ebola on Kenyan soil. The High Court intervened and found Health Cabinet Secretary in contempt; Duale denied the claim, yet reports later emerged that seven humanitarian aid workers from Samaritan’s Purse were at the Nanyuki Air Base facility.

Drawing on Philip Gourevitch’s book about the Rwandan genocide, We Wish to Inform You That Tomorrow We Will Be Killed with Our Families, the Katiba Institute argued in court that the administration was toying with a known catastrophe. US Secretary of State Marco Rubio had publicly stated that no one infected with Ebola would be allowed into America. Katiba Institute said it was ironic for Kenya to accept a disease that would kill and disrupt public life for a secret deal later unmasked by The New York Times.

Despite World Health Organisation warnings that the Congo-origin disease is highly contagious, has no approved cure and limited treatment options, the government risked Kenyan lives.

“This level of constitutional carelessness and institutionalized defiance of the Constitution is a threat to our constitutional order. It is a demonstration of the Executive arm of the government being derelict of its obligations. The Constitution requires the government to take precautionary measures to prevent its citizens from being exposed to deadly diseases,” argued the lobby.

The LSK and Fred Isaboke also challenged the deal, arguing that the capacity of the Nanyuki facility .had been expanded from 50 beds to 250. They said the Laikipia County learned of the facility only from the media despite existing inter-governmental forums; the county was ill-prepared.

On multiparty democracy, the Registrar of Political Parties lists at least 97 parties, yet United Democratic Alliance, Jubilee and Orange Democratic Movement remain central. When William Ruto was deputy president he accused Uhuru Kenyatta of running a “mongrel government” after the handshake with Raila Odinga, arguing it destroyed accountability.

He later formed his own “broad-based” arrangement.

Critics say National Assembly Speaker Moses Wetang’ula’s decision on majority and minority status violated multiparty democracy. In a case by Kenneth Njagi Njiru, the High Court ruled that majority or minority status is decided at the ballot; Azimio was therefore the majority.

Today the picture is blurred: ODM, once a principal opposition party, sits in government and drums for the President’s second term. The judges observed that after the Independent Electoral and Boundaries Commission gazetted winners and coalition agreements were submitted to then Registrar Ann Nderitu, Azimio held the majority. Wetang’ula’s alteration of the matrix was unconstitutional.

He had admitted that, on the basis of IEBC notices and Nderitu’s information, Azimio had 171 members and Kenya Kwanza 165. Without a post-election agreement he had no basis to disregard the pre-election coalitions or to rule that parties had shifted.

Wetang’ula’s cake

The Registrar had also written to Ford Kenya about Wetang’ula holding party office while serving as Speaker; the party’s lawyers replied that no law prohibited the Speaker from having his cake and eating it.

 The current arrangement, lawyer Kibe Mungai says, mocks the Constitution: oversight of the Executive becomes impossible when the Speaker is a Kenya Kwanza principal, Ford Kenya leader, and opposition MPs cross the floor. Such a structure was never contemplated in the Constitution’s architecture.

Sixteen years on, the song’s refrain still echoes. Kenya’s progressive Constitution promised a country where rights are guaranteed, power is checked, and ordinary citizens can smile with reason.

The gap between that promise and the lived reality of abductions, contested health schemes, blurred multiparty lines and persistent state resistance remains wide.

Yet the continued insistence of courts, lawyers, youth and citizens on reclaiming the document itself offers the faint outline of something worth defending—even if, for now, there is still far too little to smile about.