Jomo kenyatta university of agriculture and technology school of law

JOMO KENYATTA UNIVERSITY OF AGRICULTURE AND TECHNOLOGY
SCHOOL OF LAW
Constitutional Law I - LSC-2105 Assignment
28
th
November 2022
NAME: JABES BAESAM OJWANG
REG. NO.: LSG201-C002-0084/2022
Question: Identify and briefly describe any two specific economic, social, political or cultural challenges/issues that you think Kenya is facing currently and discuss the constitutional law questions that may underpin these issues. Further, discuss how, according to you, the
Constitution and constitutional law would be applied to address the challenges that you identify and the limitations that you think your constitutional law solution(s) would face.
POLITICAL CHALLENGES AFFECTING KENYA
Nearly six decades after Kenya got their independence from their colonial masters, the nation is still struggling to overcome many political hurdles. Many attempts have been made to tackle such issues some of which have made tremendous results while most of them giving dismal or no results. In the recent past, Kenya promulgated a new constitution replacing the previous one. In it are laid principles and methods trying to solve such challenges. Although we can say that the society is transforming towards a new era, we can also testify that the society is too rigid to accept some changes brought out in this new constitution. Some of the political challenges affecting this country are divisive tribal politics brought about by hate speech and neglect of women in leadership under elective positions.

1.DIVISIVE TRIBAL POLITICS AND HATE SPEECH
In matters concerning politics, Kenya has a dark history due to divisive tribal politics which poses a threat to the national unity. Mostly, it is a tug of war between major tribes and the minority tribes and it is something that began before independence especially when KADU was formed to protect interests of minor tribes as opposed to KANU which they believed to be dominated and controlled by large tribes that is Luo and Kikuyu. Later, it came out boldly when
Odinga Odinga and Jomo Kenyatta divorced their political marriage hence causing rivalry between Luo and the Kikuyu leading to the stoning of the president’s motorcade in Kisumu
1
Similarly, during Moi’s era where Kalenjins, Luos, Kikuyus and the Maasais were not at good terms. Divisive tribal politics is always fueled by hate speech by politicians during their campaigns against their competitors. According to political analysis “the dilemma arises when politicians use ethnicity for their personal gain and create a divide which breeds tribalism” (DW
2017)
2
. This is always witnessed during general elections especially for most competitive elective seats which in most cases are the top seats in the nation such as witnessed in 2007 general elections. Such hate speeches are always based on ethnic beliefs where one proclaims his
1
Opondo P.A, ‘Ethnic politics and post-election violence of 2007/8 in Kenya’ [2014] vol.6(4) pp59-67 ISSN2141-6672 accessed 27
th
November
2022.
2
Doreen Nekesa Busolo and Samuel Ngugi, ‘Understanding Hate Speech in Kenya’ [2018] vol
18 ISSN2224-3275 accessed 27
th
November 2022.

or her community belief as superior to the other while also condemning the other’s as useless and pointless. For example, candidate A may convince the public to vote him or her in against candidate B since the opponent is from an uncircumcised tribe and therefore not worthy to hold a public office. Tribal politics have amounted to huge casualties in the past, something that it is still fresh in the mind of citizens. For example, ethnic clashes in 1990 and the 2007/2008 post- election violence were as a result of incitement of tribes against other tribes by hate speech from politicians. Even still, the society has refused to embrace change as every citizen tends to cling onto political camps based on tribal affiliation. This comes about due to the fact that most political parties formed are nearly tribal in nature. In other situations, political hate speech is perpetrated by the people themselves on the basis of unequal distribution of resources. During the Kibaki regime some of more glaring examples of hate speech included statement such as,
“…they hate Kikuyus because we are hardworking. Luos just go fishing and fish is free and there after they ask the government for relief maize to make ugali.”
3
The constitution has tried to solve this way in different ways.
Solution:
Even though the constitution allows for freedom of expression
4
, it has also provided limitations for such freedom so as to tackle negative speech made unpremeditatedly
5
. Formation of parties
3
Maina Kiai, ‘Speech, power and violence Hate speech and Political crisis in Kenya’ Kenya
National Commission on Human rights KNHRC, [2007] accessed 27
th
November 2022.
4
article 33(1) constitution of Kenya.
5
article 33(2) Ibid.

should not be on racial or ethnic basis and should not encourage violence by, or intimidation of anyone
6
Limitation
The provision within the constitution to tackle divisive ethnic politics have been accompanied by huge limits over time. First most of the perpetrators of such utterances are key political figures hence regarded as the ‘untouchable’ and cannot be prosecuted before courts. This comes as a result of their financial and political capacity to pay bail and higher the best lawyers.
7
second, there’s technicality in interpretation of such utterances as those accused might defend themselves to have been acting to protect interests of their ethnic tribes and in the end the cases become very long and are later kicked out.
8 2.NEGLECT OF WOMEN IN LEADERSHIP UNDER ELECTIVE POSITIONS
Kenya being a patriarchal society, women oftentimes struggle to rise in the field of politics. This is because the society members believe that men can make good leader compared to women and women should rather concentrate on their domestic responsibilities than venturing into such careers. Socialization of process has implanted in people minds stereotype ideas about the role of men and women in society culmination in not only barring women from taking part in political
6
article 91(2) Ibid.
7
Peter Onyonyo, ‘Criminality in “Hate speech” Provision in the laws of Kenya- Jurisprudential challenges’ accessed 27
th
November 2022 .
8
Ibid.

affairs but also not believing in themselves.
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traditional beliefs, perceptions and stereotypes which depict women as being inferior have tended to militate towards their marginalization.
10
Under representation of women in political power has greatly affected their interests since their needs are not always met by government. Only few women have managed to climb the political slope to sit on elective seats but not without scars and bruises. They are faced with many impediments some of which are lack of finance to drive their campaign, intimidation from their male counterparts through insults and violent threats, lack of support from fellow women, failure to acquire tickets from various political parties. In the past, it was a mandatory requirement to be a member of a certain political party so as to be elected. Although this have been out ruled
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, being affiliated to a certain political party remains a basic factor to determine your political fate both as a man and a woman. This is always determined in party nominations which are always flooded with corruption to disadvantage women as most of them are always kicked out of the competition during these chaotic nomination processes. In some cases, their male counterparts are awarded direct tickets from various parties. In the 2022 general elections,
9
Ruth Odhiambo and Maurice and Maurice Oduor, ‘Gender Inequality’ in P.L.O Lumumba M.
K. Mbondenyi and S.O Odero (eds), The constitution of Kenya contemporary readings( Reprint,
Law Africa 2011).

10
Douglas Kivoi, ‘Factors impeding political participation and representation of women in
Kenya’ [2014] vol 2 no. 6 pp173-
181<
http://www.sciencepublishingroup.com/journal/paperinfo?journallid=208&doi=10.11648/j.
hss.20140206.15> accessed
27
th
November 2022.
11
Art 85 constitution of Kenya

positive developments in women’s position in politics have been cited as increasing but also there are some regions that continue the old way of the society. One of the regions is Kajiado county where no woman was elected to any position except for the woman representative position and some counties such as Kisii, Nyamira and Kirinyaga having only one woman each elected to the county assembly.
Solution:
The constitution of Kenya 2010 has managed to provide means to mitigate this challenge.
Majorly the introduction of the two-thirds gender rule which regulates gender composition of an elective public body
12
. It also allows all citizens to exercise their political rights.
13
It provides for equality for both gender and equal treatment and opportunities in different fields.
14
it also promotes for representation of marginalized groups such as women.
15
Creation of position only reserved for women in both national assembly and senate.
16
Decentralization of power to create county governments hence more elective positions.
17 allowing candidates to contest as independent thus not requiring to be a member of a given party.
18
Also, all political parties
12
art 81(b), Ibid.
13
art 38, Ibid.
14
art 100, Ibid.
15
art 27(6), Ibid.
16
art 97(b) and art 98(b), Ibid.
17
art176, Ibid.
18
art 85, Ibid.

formed should ensure participation of all minorities and promote gender equality
19
.All of these provisions have enabled women to compete for other position with men. In the past August polls, women competed aggressively against men a good example is Cecily Mbarire who gained a narrow victory against former senator Lenny Kivitu for the gubernatorial position. However, these solutions are also accompanied by various limitations.
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Limitations
Women are still under represented on the elective positions as the legislative arm has completely failed to meet the two-thirds gender rule. There have been calls to dissolve the legislative arm due its failure on this but still, it is argued that it is not a guarantee for voter to elect women on elective position to resolve the tussle over the two thirds gender rule. Even though candidates are allowed to contest as independent, women find it difficult to provide requirements needed such as number of registered voters who supports them.
Conclusion
It can be said that Kenya is slowly experiencing change under divisive tribal politics based on hate speech and the participation of women in political leadership because of its non or minimal adherences to the constitutional provisions governing the matters. This can be countered by strict obedience to the constutition.
19
art 91(e, f), Ibid.
20
George Munene, ‘How Manyatta constituency handed Mbarire governor seat’ The Daily
Nation (15
th
August 2022) p12.