Maraga Warns: Kenya Constitutional Erosion Endangers 2010 Charter

• Former Chief Justice David Maraga warned that Kenya's 2010 Constitution is "under siege" due to violations like criminalised dissent and disregard for court orders.
• Maraga criticized Parliament for failing to check executive power, leading to its expansion and contributing to "state capture."
• He emphasized that public participation should be a constitutional obligation, not a formality, and highlighted the Bill of Rights as a key safeguard.
• Maraga stated that when institutions fail, the responsibility for safeguarding constitutionalism shifts to citizens, civil society, and the judiciary.
• The 2027 General Election, for which Maraga is a presidential flag bearer, will be a crucial test of Kenyans' commitment to constitutional principles, serving as a "referendum" on the nation's future.

When the institutions designed to hold those in power accountable falter, the responsibility for safeguarding the constitution shifts back to the citizenry.

Former Chief Justice David Maraga has issued a stark warning regarding the state of Kenya's foundational legal document, asserting that the 2010 Constitution is currently "under siege." Speaking on Thursday, as the nation commemorated 16 years since the Constitution's promulgation, Maraga urged citizens to heighten their vigilance. His remarks coincided with a Katiba Day Symposium led by President William Ruto at State House, Nairobi, marking the anniversary.

In a statement released for Katiba Day, Maraga underscored that the Constitution emerged from years of intense struggle and profound sacrifice. He cautioned that its fundamental protections are being systematically eroded through various violations that should deeply concern all Kenyans. Among the critical threats he identified were the criminalisation of dissent, a growing disregard for court orders, and the reduction of public participation to a mere formality rather than its intended role as a constitutional obligation.

Maraga emphasized that the past 16 years offer an unambiguous lesson: the Constitution must be actively defended. He stressed the necessity of vigilance, noting that those intent on undermining it are working tirelessly. The former Chief Justice specifically highlighted the Bill of Rights and the provisions for public participation as vital safeguards against excessive governmental power, arguing that their weakening directly compromises the Constitution's promise of an accountable government.

Further elaborating on the challenges facing the nation's constitutional framework, David Maraga sharply criticized the legislative branch for its perceived failure to adequately scrutinize executive power. He contended that Parliament, an institution constitutionally mandated to question, examine, and, when necessary, restrain the Executive, has instead "regressed from oversight to acquiescence." This perceived abandonment of its duties, according to Maraga, has significant ramifications for governance in Kenya.

The former Chief Justice argued that this legislative inaction has led to an unchecked expansion of executive authority. This trend, he suggested, is contributing to what he termed "state capture," a situation where public institutions are manipulated to serve narrow, self-serving interests rather than the collective will of the sovereign people. The erosion of parliamentary oversight, therefore, directly undermines the democratic principles enshrined in the 2010 Constitution.

Maraga articulated that when the established institutions designed to hold those in power accountable falter, the responsibility for safeguarding the constitution shifts back to the citizenry. He stressed that this burden falls upon civil society, the judiciary, and indeed, every Kenyan, because constitutionalism is not an automatic process; it requires active engagement and defense. The principles of the Bill of Rights and robust public participation are not self-executing but demand constant protection to prevent their erosion.

The former Chief Justice's warning serves as a critical reminder of the foundational role of public involvement in governance. Treating public participation as a mere formality, rather than a genuine constitutional obligation, directly undermines the spirit of the 2010 Constitution. Maraga's message underscores that the strength of the constitutional framework ultimately rests on the collective commitment and vigilance of the people it is designed to serve.

Looking ahead, David Maraga, who also serves as a co-leader of the United Green Movement (UGM) Party and its declared presidential flag bearer for 2027, indicated that the upcoming General Election will serve as a crucial test of Kenyans' dedication to upholding constitutional principles. He framed the 2027 election as far more than a conventional contest between political candidates. Instead, Maraga characterized it as a fundamental choice concerning the future direction and character of the country.

He explicitly described the 2027 electoral cycle as a "referendum" on the kind of nation Kenyans aspire to build. Maraga implored voters to approach this pivotal election with the same clarity of purpose and courage that inspired the creation and promulgation of the 2010 Constitution. He concluded his remarks by stating that Katiba Day not only commemorates what was achieved but also serves as a solemn warning about what could still be irrevocably lost if vigilance wanes. The Constitution was formally adopted on August 27, 2010, following a nationwide referendum where Kenyans overwhelmingly approved the new constitutional framework.

This article serves as a critical alert for lawyers and compliance officers in Kenya regarding the potential erosion of constitutional safeguards, including judicial independence and public participation. Practitioners should closely monitor legislative and executive actions for signs of executive overreach or disregard for court orders, as these trends could significantly impact legal strategy, client rights, and compliance obligations.

Source: Reporting based on Capital FM's coverage