Beyond constitutional promises: Reclaiming the rule of law and the soul of Kenya’s constitutional republic

(Speech delivered by Evans Ogada on 13 October 2026 at the Rule of Law Technical Caucus at the Fairview Hotel, Nairobi)

Plenary on priority themes for the rule of law Distinguished Chairperson, fellow panellists, members of the legal fraternity, representatives of civil society, ladies and gentlemen. Let me begin with a proposition: Kenya does not suffer from a shortage of laws, constitutional provisions, institutions or judicial pronouncements. Our deeper crisis is the persistent failure to translate constitutional promises into the lived realities of the people. We have, in many respects, a crisis not of constitutional text, but of constitutional fidelity; not of institutional design alone, but of political will; and not merely of legal compliance, but of the very idea of the State and the purposes for which it exists. The question before us, therefore, is not simply how to defend the rule of law. It is how to reclaim it from the forces that have reduced it, too often, to a language of convenience, invoked when it serves power and abandoned when it threatens power.

1. The unfinished project of constitutionalism

The Constitution of Kenya, 2010, was a historic rejection of authoritarianism, executive excess, institutional impunity and the concentration of political and economic power. It sought to transform the Kenyan State from an instrument of domination into an instrument of public service, social justice and democratic self-government. Articles 1, 2, 10 and 19 are foundational to this transformation. Sovereignty belongs to the people. The Constitution binds every person and every State organ. National values must guide the exercise of public authority. Rights are not gifts from the State; they are inherent entitlements that the State is constitutionally obligated to respect, protect, promote and fulfil. Yet, sixteen years after the promulgation of the Constitution, we must confront an uncomfortable question: have we transformed the architecture of power, or have we merely constitutionalised its vocabulary? We have established institutions, enacted legislation and developed an impressive body of constitutional jurisprudence. But 2026 NOVEMBERR 49 constitutionalism requires more than the existence of institutions. It requires that power be limited, justified, accountable and exercised for the public good. A State does not become constitutional merely because it has a Constitution. It becomes constitutional when those who exercise power accept that they are neither above the law nor the ultimate authors of its meaning.