This PDF is made available under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International (CC BY-NC-ND 4.0) Licence. Further details regarding permitted usage can be found at http:// creativecommons.org/licenses/by-nc-nd/4.0/ Print and ebook editions of this work are available to purchase from Zed Books (www.zedbooks.co.uk). A frica Now Africa Now is published by Zed Books in association with the inter nationally respected Nordic Africa Institute. Featuring high-quality, cutting-edge research from leading academics, the series addresses the big issues confronting Africa today. Accessible but in-depth, and wide-ranging in its scope, Africa Now engages with the critical political, economic, sociological and development debates affecting the continent, shedding new light on pressing concerns. Nordic Africa Institute The Nordic Africa Institute (Nordiska Afrikainstitutet) is a centre for research, documentation and information on modern Africa. Based in Uppsala, Sweden, the Institute is dedicated to providing timely, critical and alternative research and analysis of Africa and to co-operation with African researchers. As a hub and a meeting place for a growing field of research and analysis, the Institute strives to put knowledge of African issues within reach of scholars, policy makers, politicians, media, students and the general public. The Institute is financed jointly by the Nordic countries (Denmark, Finland, Iceland, Norway and Sweden). www.nai.uu.se Forthcoming titles Lisa Åkesson and Maria Eriksson Baaz (eds), Africa’s Return Migrants Thiven Reddy, South Africa: Beyond Apartheid and Liberal Democracy Anders Themner (ed.), Warlord Democrats in Africa Titles already published Fantu Cheru and Cyril Obi (eds), The Rise of China and India in Africa Ilda Lindell (ed.), Africa’s Informal Workers Iman Hashim and Dorte Thorsen, Child Migration in Africa Prosper B. Matondi, Kjell Havnevik and Atakilte Beyene (eds), Biofuels, Land Grabbing and Food Security in Africa Cyril Obi and Siri Aas Rustad (eds), Oil and Insurgency in the Niger Delta Mats Utas (ed.), African Conflicts and Informal Power Prosper B. Matondi, Zimbabwe’s Fast Track Land Reform Maria Eriksson Baaz and Maria Stern, Sexual Violence as a Weapon of War? Fantu Cheru and Renu Modi (eds), Agricultural Development and Food Security in Africa Amanda Hammar (ed.), Displacement Economies in Africa Mary Njeri Kinyanjui, Women and the Informal Economy in Urban Africa Liisa Laakso and Petri Hautaniemi (eds), Diasporas, Development and Peace­ making in the Horn of Africa Margaret C. Lee, Africa’s World Trade About the editors Godwin R. Murunga is a senior research fellow in the Institute of Development Studies, University of Nairobi, and director of the African Leadership Centre. He is also a visiting professor in the Global Institutes at King’s College London. He is a trained historian with a PhD from North- western University in Illinois, specialising in urban history but with research interests in democratisation processes in Africa, politics of knowledge production and masculinities in Africa. His current research project focuses on the role of settlements in peace-building and state-building in Kenya. Duncan Okello is currently the Chief of Staff in the Office of the Chief Justice, Republic of Kenya. He holds a BA degree in political science and history as well as a law degree, both from the University of Nairobi. He also holds an MA in international relations from the University of Kent at Canter- bury, UK. His policy and research interests revolve around questions of democratisation and institution-building for societies in transition, constitutionalism and the rule of law, and how development outcomes mediate and influence state and citizen relations in Africa. He previously worked as director of programmes at the Institute of Economic Affairs in Kenya, and as the Regional Director for Eastern Africa for the Society for International Development. Anders Sjögren is a senior researcher with the Nordic Africa Institute in Uppsala. He holds a PhD in political science from Stockholm University. Working in the field of the com- parative political economy of development and state–society relations in Africa, his current research is on land conflicts, state formation and citizenship in Kenya and Uganda. Kenya: the struggle for a new constitutional order edited by Godwin R. Murunga, Duncan Okello and Anders Sjögren Zed Books london Kenya: the struggle for a new constitutional order was first published in 2014 in association with the Nordic Africa Institute, PO Box 1703, se-751 47 Uppsala, Sweden by Zed Books Ltd, 7 Cynthia Street, London n1 9jf, uk. www.zedbooks.co.uk www.nai.uu.se Editorial copyright © Godwin R. Murunga, Duncan Okello and Anders Sjögren 2014 Copyright in this collection © Zed Books 2014 The rights of Godwin R. Murunga, Duncan Okello and Anders Sjögren to be identified as the editors of this work have been asserted by them in accordance with the Copyright, Designs and Patents Act, 1988 Set in OurType Arnhem, Monotype Gill Sans Heavy by Ewan Smith Index: [email protected] Cover designed by www.roguefour.co.uk All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical, photocopying or otherwise, without the prior permission of Zed Books Ltd. A catalogue record for this book is available from the British Library isbn 978-1-78032-366-4 hardback isbn 978-1-78032-365-7 paperback isbn 978-1-78032-367-1 pdf isbn 978-1-78032-368-8 epub isbn 978-1-78032-369-5 mobi Contents Acronyms and abbreviations | vi Preface | viii Towards a new constitutional order in Kenya: an introduction . 1 godwin r. murunga, duncan okello and anders sjögren PART ONE Contexts and actors in the making of a new constitution 1 The protracted transition to the Second Republic in Kenya. 17 paul tiyambe zeleza 2 Fuelling the violence: the print media in Kenya’s volatile 2007 post- election violence . 44 sammy gakero gachigua 3 Mediating Kenya’s post-election violence: from a peace-making to a constitutional moment . 66 e. njoki wamai 4 Instrumentalism and constitution-making in Kenya: triumphs, challenges and opportunities beyond the 2013 elections . 79 raymond muhula and stephen ndegwa 5 Revisiting ‘the two faces of civil society’ in constitutional reform in Kenya . 97 wanjala s. nasong’o PART TWO The content, challenges and opportunities of a new constitutional order 6 Constitutions and constitutionalism: the fate of the 2010 constitution . 119 yash pal ghai 7 Elite compromises and the content of the 2010 constitution . 144 godwin r. murunga 8 Security and human rights in the new constitutional order in Kenya . 163 mutuma ruteere About the contributors | 181 Index | 184 Acronyms and abbreviations 4Cs Citizens’ Coalition for Constitutional Change AU African Union CCP Concerned Citizens for Peace CCRC Comprehensive Constitution Reform Coalition CIC Commission for the Implementation of the Constitution CIPEV Commission of Inquiry into Post-Election Violence CKRC Constitution of Kenya Review Commission CMD-K Centre for Multiparty Democracy-Kenya CNC Coalition for a National Convention CoE Committee of Experts CORD Coalition for Reforms and Democracy COTU Central Organisation of Trade Unions CPJC Catholic Peace and Justice Commission CRECO Constitution and Reform Education Consortium CSO civil society organisation DP Democratic Party ECK Electoral Commission of Kenya ELOG Kenyan Elections Observation Group EU European Union FORD Forum for the Restoration of Democracy FORD-A Forum for the Restoration of Democracy-Asili FORD-K Forum for the Restoration of Democracy-Kenya GEMA Gikuyu, Embu and Meru Association ICC International Criminal Court IEBC Independent Electoral and Boundaries Commission IPOA Independent Policing Oversight Authority IPPG Inter-Party Parliamentary Group JDF Joint Dialogue Forum JSC Judicial Service Commission KADU Kenya African Democratic Union KANU Kenya African National Union KHRC Kenya Human Rights Commission KI Katiba Institute KNCHR Kenya National Commission on Human Rights KNDR Kenya National Dialogue and Reconciliation KPTJ Kenyans for Peace, Truth and Justice KPU Kenya People’s Union KYFM Kenya Youth Foundation Movement vi LDP Liberal Democratic Party LSK Law Society of Kenya MoU memorandum of understanding MP member of parliament MSRF Multi-Sectoral Review Forum NAK National Alliance Party of Kenya NARC National Alliance Rainbow Coalition NCCK National Council of the Churches of Kenya NCEC National Convention Executive Council NCPC National Convention Preparatory Committee NDC National Dialogue Conference NDP National Democratic Party NGO non-governmental organisation NIS National Intelligence Service NSIS National Security Intelligence Service NUKS National Union of Kenya Students ODM Orange Democratic Movement ODM-K Orange Democratic Movement-Kenya PAF Policy Advisory Foundation PCK People’s Commission of Kenya PNU Party of National Unity PSC parliamentary select committee RPP Release Political Prisoners SAP structural adjustment programme SCOK Supreme Court of Kenya SODNET Social Development Network SONU Students Organization of Nairobi University TI Transparency International TNA The National Alliance UN United Nations UNDP United Nations Development Programme URP United Republican Party vii Preface This study of Kenya’s constitution-making process is a joint initiative between the Nordic Africa Institute and the Institute for Development