KATIBA16 : Futile attempts to amend the Constitution and why they flopped

As Kenya marks 16 years since the promulgation of the 2010 Constitution today, its record of fidelity to the document tells two stories.

One is of a supreme law robust enough to have survived a presidential push to rewrite 74 of its provisions, a national dialogue process, and now a long-term development agenda dubbed Vision 2060, which critics accuse of seeking to introduce constitutional change through the back door.

The other is of a political class that keeps attempting to outmanoeuvre the very organogram the Constitution sets out, appointing officers and creating offices Kenyans never voted for, only to have the courts strip them down, one by one.

The tension between political ambition and constitutional restraint has defined much of our country's journey since the historic referendum of August 4, 2010, when Kenyans overwhelmingly endorsed a new constitutional order.

The Constitution was designed to tame presidential power, strengthen Parliament, entrench devolution, protect independent institutions and place sovereign power firmly in the hands of the people.

Sixteen years later, however, the document remains both a shield against political excesses and a target of political redesign.

From former President Uhuru Kenyatta’s Building Bridges Initiative (BBI), to the William Ruto-Raila Odinga-led National Dialogue Committee (NADCO), the creation of executive offices and the prolonged fight over the National Government Constituencies Development Fund (NG-CDF), Kenya’s political class has repeatedly tested the limits of the 2010 constitutional architecture.

The courts, however, have emerged as the unlikely guardians of the blueprint.

Perhaps the most spectacular battle was BBI, born out of the March 2018 political handshake between then President Kenyatta and former Prime Minister Odinga.

Kenyatta said the initiative was intended to address political exclusion, ethnic antagonism and the winner-takes-all nature of Kenyan elections.

“What is wrong with trying to fix such anomalies?” Kenyatta asked in 2020, arguing that the Constitution should serve Kenyans rather than imprison them in models that were not working.

The BBI Bill proposed 74 constitutional amendments touching on Parliament, the Executive, revenue sharing, constituencies and other institutions.

But its journey ended not at the ballot box, but in the courtroom.

The case, filed by activists including economist David Ndii, now an adviser to President Ruto, moved through the High Court, Court of Appeal and Supreme Court, with the three levels of the Judiciary ultimately finding fault with the process.

On March 31, 2022, a seven-judge Supreme Court bench delivered one of the most consequential constitutional judgments since 2010.

The apex court rejected the basic structure doctrine as a limitation on constitutional amendment, affirming that the Constitution could be amended.

But it also drew a crucial line on who could initiate such amendments and through which constitutional route.

The judges held that a sitting President, as a state organ, could not initiate a constitutional amendment through the popular initiative route, whether directly or through a parliamentary or popular initiative.

“The President or state organs or institutions are not permitted to initiate or promote a constitutional amendment process through the popular initiative route,” the Supreme Court judges ruled.

The court found that the then President Kenyatta and the National Executive had played a central role in initiating and promoting BBI, undermining its claim to be a genuine popular initiative.

The High Court had similarly warned that allowing the President to drive an amendment under Article 257 would make him both the promoter and referee of the process.

The courts also found fault with the proposed increase in constituencies without the involvement of the Independent Electoral and Boundaries Commission.

The lesson was bigger than BBI that constitutional change may be politically desirable, but the process for achieving it matters just as much as the proposed reforms themselves.

BBI therefore became the clearest warning that political intentions cannot cure an unconstitutional process.

But BBI did not end the appetite for constitutional reform.

NADCO emerged after the 2022 elections as part of the political rapprochement between President Ruto and the opposition.

Its mandate included constitutional, legal and policy reforms.

Among its proposals were the entrenchment of the NG-CDF, National Government Affirmative Action Fund and Senate Oversight Fund in the Constitution, as well as the offices of the Leader of the Official Opposition and Prime Cabinet Secretary.

When Ruto received the NADCO report in March 2024, he praised the use of democratic means to resolve national problems.

But NADCO also exposed a recurring question in our constitutional journey: when can the government create new structures through ordinary law or administrative action, and when must it return to the Constitution itself?

The Prime Cabinet Secretary became one such test.

Ruto created the office and appointed Musalia Mudavadi without first amending the Constitution to expressly establish it as a constitutional office.

The arrangement was subsequently challenged in court, with petitioners questioning whether the Executive had exceeded its constitutional authority.

A similar battle unfolded over the office of Chief Administrative Secretary.

The CAS position had been created during the Kenyatta administration.

In 2021, Justice Anthony Mrima declared its establishment unconstitutional, citing violations of several constitutional provisions governing public service, accountability and executive power.

The Ruto administration later sought to regularise the position through the Public Service Commission.

But when the number of CASs was expanded from the publicly contemplated 23 to 50, the matter returned to court.

In a petition filed by UK-based activist Eliud Karanja Matind, the High Court found that the additional positions had not followed the constitutional process.

The judges questioned the creation of what amounted to a parallel layer within the Executive.

“We do not think that it was the intention of the framers of the Constitution to have 50 CASs deputizing 22 Cabinet Secretaries,” Justice Kanyi Kimondo, who led the bench, ruled.

The court ultimately declared the entire complement of 50 CASs unconstitutional and quashed the appointments.

The message was clear that indeed the Executive cannot redraw the constitutional organogram simply through appointments or administrative decisions.

The same constitutional tension has played out in Parliament through the long-running NG-CDF battle.

For years, MPs have resisted efforts to remove their control over billions of shillings in constituency development funds, despite arguments that development functions belong to the Executive and devolved governments rather than legislators.

On August 8, 2022, the Supreme Court declared the 2013 CDF Act unconstitutional, agreeing that it violated the separation of powers and constitutional principles governing the division of revenue.

Aggrieved by the decision, Parliament subsequently enacted a new legal framework in an attempt to preserve the constituency-based development kitty.

But in September 2024, the High Court again struck down the 2015 Act as amended in 2022 and 2023.

The judges held that the Fund duplicated functions assigned to county governments and blurred the constitutional boundary between legislators and implementers.

They stressed that a constituency is a unit of political representation, while an MP’s constitutional functions are representation, legislation and oversight.

The court ordered the Fund to cease operations on June 30, 2026.

Parliament fought back, seeking to preserve the more than Sh50 billion development kitty.

On February 6, 2026, the Court of Appeal overturned the High Court decision and largely upheld the NG-CDF framework, although it struck down one provision concerning the tenure of constituency fund managers.

NG-CDF demonstrates that Parliament, like the Executive, cannot simply legislate its way out of constitutional scrutiny.

Yet it continues to engage in a spirited bid to change the Constitution buoyed by political expediency. 

In the lead up to the 2022 general election, MPs allied to Jubilee party and under the Boresha katiba team fronted a proposal for the reduction of Counties from 47 to 10 and a reduction of constituencies from 290 to 210 under the guise of lowering the public wage bill. The team led by MP Asman Kamama also sought an abolishment of the 2/3 gender rule from 2022.

The proposal was however abandoned after generating sharp political and public outcry over the potential destabilization of devolution.

When it comes to efforts to ensure the attainments of the two-thirds gender rule, various legislative proposals to amend the Constitution have been fronted with some still under consideration by the House.

One such Bill is the Constitution of Kenya(amendment) Bill 2025 that seeks to introduce special seats in both the National Assembly and Senate.

The Bill sponsored by Uasin Gishu Woman Representative Gladys Shollei, Dagoretti North MP Beatrice Elachi, and Laikipia Woman Representative Jane Kagiri, stipulates that the seats will be allocated to political parties after an election to give effect to the two-thirds gender rule. As it is a Money Bill, it will trigger occasional public expenditure, with the seats will be allocated proportionately to the number of seats won by the party.

“The principal object of this Bill is to amend the Constitution to ensure that the membership of the National Assembly and the Senate conforms to the two-thirds gender principle provided for in Article 81(b) of the Constitution,” it reads in part.

“The Bill seeks to give effect to the two-thirds gender principle through the creation of special seats that will ensure that the gender principle is realized in Parliament,” it adds.

A similar Bill has also been introduced at the Senate by leader of the Majority party Aaron Cheruiyot.

And now comes Vision 2060.

Unlike BBI and NADCO, Vision 2060 is not itself a constitutional amendment initiative.

It is being presented as a proposed successor to Vision 2030, with the government seeking public participation before a long-term development framework is formulated.

Ruto has argued that Kenya needs a development framework capable of surviving election cycles.

“When Vision 2030 was developed, it was developed before the new Constitution,” he said, pointing to the stronger citizen participation framework contained in the 2010 Constitution.

He added: “A new Constitution that does not request us to consult the people. No, it is mandatory.”

That statement may prove to be an important test of Vision 2060.

For Kenya’s experience since 2010 suggests that the problem has not always been a shortage of blueprints.

It has been selective obedience to the blueprint already in force.

BBI tested the rules for changing the Constitution. NADCO tested the appetite for constitutional reform. The CAS and Prime Cabinet Secretary disputes tested the limits of executive power. NG-CDF tested Parliament’s ability to legislate within the constitutional division of functions.

Together, they reveal a recurring tension between political ambition and constitutional restraint.

Sixteen years on, the Constitution has survived not because politicians stopped trying to change it, but because institutions, particularly the Judiciary, have repeatedly insisted that change must follow the rules of change.

The message from the courts is remarkably consistent that Kenya can amend its Constitution, Parliament can legislate and the Executive can organise government within its constitutional powers, but neither Parliament nor State House owns the Constitution, it belongs to the people.

And that may be the most important lesson for Katiba @ 16: before Kenya searches for another blueprint, its leaders may first need to obey the one Kenyans already gave themselves.