The referendum of August 4th, 2010 brought drastic and legitimately irreversible changes to the rights and governance landscape of Kenya. For the first time after decades, there was a real possibility of sustainable peace, security and stability for the people of Kenya.
People of Kenya made a revolutionary political decision as people not as government. After many years working and acting for democracy, people of Kenya ushered a new constitutional path to act as their guarantor of peace, security and political stability. This path is untouchable and must not be desecrated for it is the sovereign will of the people of Kenya.
Government draws its authority and legitimacy from the sovereign will of the people and not the vice versa. The power and authority given to the judiciary to grant redress for the contravention by the State of the human and fundamental rights and or procedures enshrined in the Constitution is a most potent weapon in the armory of the law to protect the citizen against violation of his/her fundamental rights.
A reasonably stable set of institutions, procedures and values through which fundamental decisions are going to be made over a sustained period of time, and the principles that guide these decisions are well enshrined in the new Constitution. These institutions, procedures and principles provide structure within which inclusive participation and political contention shall occur.
Constitution is the basic law, which is based upon democracy, freedom and the rule of law. For this reason, all imaginable guarantees and remedies were inserted into the new constitution to prevent the repetition of the rupture of nation as it has occurred in the past.
The experience of tyrannical state in the last century led the people of Kenya to a fundamental rethinking of the problem of the limits to State power. This culminated in the image under new constitutional order of a State order that is both democratic and guarantees the individual's fundamental rights and freedoms. For the first time, people of Kenya outlined the philosophy, principles and values of the New Kenya.
Democracy means not just that State power derives from the people and that politics is determined by their elected representatives. Also part of democracy are particular fundamental values, to which binds all persons and organs of State.
The new constitutional order is the firm consensus of all social and political forces to prevent failure of democracy in Kenya, and to establish effective safeguards against dictatorship and the disregard for human rights. The constitution is therefore the supreme law of the land and claim priority over any government act. In order to reach this goal, the constitution contains and enshrines core principles, procedures, institutions and guarantees that must be followed, respected and upheld.
The principle of the supremacy of the constitution concerns the rights of the people and institutional structure of the organs of the State. The scope of the principle becomes clear if we reformulate it stipulating clearly that the supremacy of the constitution means the lower ranking of statute; and this in turn implies the lower ranking of the legislator.
The new Constitution guarantees the enjoyment of the various human and fundamental rights. A person who alleges that any of his/her fundamental rights contained in the Constitution has been, is being or likely to be infringed in relation to him he/she may apply to the High Court for redress and the High Court is given the power to grant redress for the purpose of enforcing or securing the enforcement of the provisions of the Constitution of which the person concerned is entitled.
The judiciary is therefore given the power of review of state action – legislative, executive or judicial and to declare any such action unconstitutional, null and void and of no effect. The Constitution makes the judiciary the watchdog and guardian of the constitutional rights of the individual. Judiciary draws it legitimacy and authority from the people and must act to safeguard, protect and enforce the rights, freedoms, institutions and procedures.
Citizens have to keep taking bold judicial and civic actions to protect the supremacy of the constitution, challenge tyranny of the state and its officers, and safeguard the rights, freedoms and guarantees of the people of Kenya