Five misconceptions about Kenya's acclaimed Constitution

President Kibaki swear in during the Promulgation of the new constitution at Uhuru Park yesterday 27/08/10.[FILE/Standard]

Last week marked the 15th anniversary of the promulgation of the Constitution of Kenya 2010 - a landmark framework that ushered in a new era of governance, rights and civic freedoms. For many younger Kenyans, particularly those born shortly before its adoption, the realities of life under the previous constitutional dispensation are either vague or entirely unknown. Equally elusive for some is a full appreciation of the sacrifices made by those who championed what is often referred to as Kenya's "Second Liberation." Yet, despite the Constitution's transformative promise, misconceptions about its origin, purpose and application persist. This column considers five such misconceptions.

The first is that the Constitution was freely bestowed. This widely held yet erroneous belief holds that the Constitution was handed to Kenyans as a benevolent gift from the political elite. In truth, it was a hard-won achievement, wrested from the grip of authoritarianism by determined reformers who bore the brunt of repression, incarceration and, in some cases, death. Much like the struggle for independence from colonial rule, the journey towards constitutional reform was marked by defiance, resistance and an unwavering commitment to democratic ideals. The promulgation in 2010 was not an act of generosity - it was the culmination of decades-long advocacy and collective sacrifices.

The second is that opponents of the 2010 constitutional referendum were enemies of reform. This common fallacy posits that those who voted against the referendum sought to perpetuate the old, repressive order. This is inaccurate. While there was an overwhelming national consensus on the need for a new constitutional order, segments of the population - including significant voices from the clergy - voiced legitimate concerns about specific provisions. Contentious issues such as the legal status of abortion, the rights of marginalised communities and the recognition of LGBTQ+ persons generated ethical and philosophical debates. Their dissent was not unpatriotic. Rather, it was part of a healthy democratic process. The Constitution belongs to all Kenyans irrespective of their stance during the referendum.

The third fallacy is that constitutional rights are absolute. Whilst the 2010 Constitution guarantees expansive civil liberties, these freedoms are neither unqualified nor unbounded. The principle that "freedom is not licence" must be observed. Rights must be exercised with due regard for the rights of others. For instance, while peaceful protest is protected, obstructing public roads or destroying property under the guise of protest is unconstitutional. The exercise of one's liberty must not infringe upon the rights and safety of fellow citizens.

The fourth mistaken notion is that the Constitution is a tool for political expediency. Holders of this dangerous view imagine that the mother law can be amended to serve political alliances or extend tenure in power. The Building Bridges Initiative, for example, emerged as a political pact masquerading as constitutional reform. Its underlying intent was to institutionalise a power-sharing arrangement rather than address structural governance issues. Likewise, calls to extend presidential term limits undermine the spirit of the Constitution which was designed to curtail, not entrench, political dominance.

The fifth misconception is that institutional tensions indicate dysfunction. The Constitution enshrines clear separation of powers among the Executive, Legislature and Parliament. Friction between these arms is not a sign of institutional failure but evidence of a functioning democracy.

Mr Khafafa is a public policy analyst