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The discussion traces the Constitution’s roots in decades of struggle, its transformative objectives, and the shift from colonial and post-independence status quo to an accountable, decentralized constitutional state. It highlights the judiciary’s duty to protect values and prevent a two-track system of judicial review, grounding the analysis in constitutional principles and Supreme Court reasoning.",{"@graph":63,"@context":118},[64,80,101],{"@type":65,"itemListElement":66},"BreadcrumbList",[67,71,74,77],{"item":68,"name":69,"@type":70,"position":9},"https://docshare.wps.com","Home","ListItem",{"item":72,"name":10,"@type":70,"position":73},"https://docshare.wps.com/template/",2,{"item":75,"name":51,"@type":70,"position":76},"https://docshare.wps.com/template/general/",3,{"item":78,"name":59,"@type":70,"position":79},"https://docshare.wps.com/template/mutunga-theory-of-interpreting-kenyas-transformative-constitution-2-1-oct-14/162471/",4,{"url":78,"name":59,"@type":81,"image":82,"author":87,"headline":59,"publisher":90,"fileFormat":93,"inLanguage":57,"description":61,"dateModified":94,"datePublished":95,"encodingFormat":93,"isAccessibleForFree":96,"interactionStatistic":97},"DigitalDocument",{"url":83,"@type":84,"width":85,"height":86},"https://docshare.wps.com/thumbnails/mutunga-theory-of-interpreting-kenyas-transformative-constitution-2-1-oct-14/162471.png","ImageObject",442,249,{"name":88,"@type":89},"Paura","Person",{"url":68,"name":91,"@type":92},"DocShare","Organization","application/vnd.openxmlformats-officedocument.wordprocessingml.document","2026-09-20","2026-08-30",true,{"@type":98,"interactionType":99,"userInteractionCount":9},"InteractionCounter",{"@type":100},"ViewAction",{"@type":102,"mainEntity":103},"FAQPage",[104,110,114],{"name":105,"@type":106,"acceptedAnswer":107},"What is the central responsibility of Kenya’s judiciary in the transformative constitutional project?","Question",{"text":108,"@type":109},"The judiciary must protect the Constitution’s values and strengthen institutions, guarding against forces that weaken them.","Answer",{"name":111,"@type":106,"acceptedAnswer":112},"What risk is identified regarding the development of judicial review under the 2010 Constitution?",{"text":113,"@type":109},"A two-tracked approach may emerge—one shaped by old common-law cases and another decided under 2010 principles—undermining a coherent tradition of judicial review.",{"name":115,"@type":106,"acceptedAnswer":116},"How does the lecture describe Kenya’s shift from earlier constitutional eras toward a constitutional state?",{"text":117,"@type":109},"It contrasts an earlier period marked by arbitrariness and inequality with a present/future where state action must be rationally analyzed and justified within constitutional law.","https://schema.org",{"og:url":78,"og:type":120,"og:title":59,"og:site_name":91,"og:description":61},"article",{"robots":122,"canonical":78},"index,follow",{"doc_id":124,"site_id":56},162471,1788125208,{"code":4,"msg":5,"data":127},{"doc_id":124,"user_id":128,"nickname":88,"user_avatar":129,"doc_module":9,"category_id":50,"category_name":51,"doc_title":59,"doc_description":61,"doc_content":130,"file_id":131,"file_url":132,"file_type":133,"file_size":134,"view_count":9,"is_deleted":4,"is_public":9,"is_downloadable":9,"audit_status":9,"page_count":135,"language":136,"language_code":57,"site_id":56,"html_lang":57,"table_of_contents":137,"faqs":138,"seo_title":139,"seo_description":61,"update_tm":125,"read_time":140},13056712833777,"https://ap-avatar.wpscdn.com/davatar_29158cc5080c5b710cf443261637dec0","University of Fort Hare\nInaugural Distinguished Lecture Series\nOctober 16, 2014\nThe 2010 Constitution of Kenya and its Interpretation: Reflections from the Supreme Court Decisions\nWilly Mutunga\nPerhaps realizing its own ambitious project, and hence its vulnerability and fragility, the Kenyan Constitution sets, through the judiciary, its barricades against destruction of its values and weakening of its institutions by forces external to itself. Such is the responsibility of Kenya’s judiciary.\nProfessor Yash Pal Ghai\nThe Kenyan judiciary must guard against the development of a two-tracked system of judicial review. One that looks like the old cases influenced by the common law, on the one hand, and cases that are decided under the 2010 Constitution’s principles of judicial review [on the other]. Those two tracks are likely to undermine the establishment of a vibrant tradition of judicial review as required by the 2010 Constitution.\nProfessor James Gathii\nWe have moved from a past characterized by much which was arbitrary and unequal in the operation of the law to a present and a future in a constitutional state where state action must be such that it is capable of being analysed and justified rationally. The idea of a constitutional state presupposes a system whose operation can be rationally tested against or in terms of the law.\nS v Makwanyane 1995(3) SA (CC) Para 156.\nIntroduction:\nIn 2010 Kenya created a new modern transformative constitution that replaced both the 1969 Constitution and the past Colonial Constitution in 1963. This was the culmination of almost five decades of struggles that sought to fundamentally transform the backward economic, social, political, and cultural developments in the country.\nThe Vision of the Constitution of Kenya\nBackground:\nThe making of the Kenyan 2010 Constitution is a story of ordinary citizens striving and succeeding to overthrow the existing social order and to define a new social, economic, cultural, and political order for themselves. Some have spoken of the new Constitution as representing a second independence.\nThere is no doubt that the Constitution is a radical document that looks to a future that is very different from our past, in its values and practices. It seeks to make a fundamental change from the 68 years of colonialism and 50 years of independence.\nIts Overall Objective and Purpose:\nIn their wisdom the Kenyan people decreed that past to reflect a status quo that was unacceptable and unsustainable through: reconstitution or reconfiguration of a Kenyan state from its former vertical, imperial, authoritative, non-accountable content under the former Constitution to a state that is accountable, horizontal, decentralized, democratized, and responsive to the vision of the Constitution; a vision of nationhood premised on national unity and political integration, while respecting diversity; provisions on the democratization and decentralization of the Executive; devolution; the strengthening of institutions; the creation of institutions that provide democratic checks and balances; decreeing values in the public service; giving ultimate authority to the people of Kenya that they delegate to institutions that must serve them and not enslave them; prioritizing integrity in public leadership; a modern Bill of Rights that provides for economic, social and cultural rights to reinforce the political and civil rights giving the whole gamut of human rights the power to radically mitigate the status quo and signal the creation of a human rights state and society in Kenya; mitigating the status quo in land that has been the country’s Achilles heel in its economic and democratic development; among others reflect the will and deep commitment of Kenyans for fundamental and radical changes through the implementation of the Constitution. The Kenyan people chose the route of transformation and not the one of revolution. If revolution is envisaged then it will be organized around the implementatio","cbCaifaE9QeqTnYn","https://ap.wps.com/l/cbCaifaE9QeqTnYn","docx",56618,27,"English","# The 2010 Constitution of Kenya and its Interpretation\n## Constitutional transformation and objectives\n## The role of the judiciary in implementation\n## The vision of the new judiciary\n## The old judiciary and its legacy","[{\"question\":\"What is the central responsibility of Kenya’s judiciary in the transformative constitutional project?\",\"answer\":\"The judiciary must protect the Constitution’s values and strengthen institutions, guarding against forces that weaken them.\"},{\"question\":\"What risk is identified regarding the development of judicial review under the 2010 Constitution?\",\"answer\":\"A two-tracked approach may emerge—one shaped by old common-law cases and another decided under 2010 principles—undermining a coherent tradition of judicial review.\"},{\"question\":\"How does the lecture describe Kenya’s shift from earlier constitutional eras toward a constitutional state?\",\"answer\":\"It contrasts an earlier period marked by arbitrariness and inequality with a present/future where state action must be rationally analyzed and justified within constitutional law.\"}]","mutunga - theory of interpreting kenya’s transformative constitution 2-1 - oct 14 | DOCX",9]