Gautam Bhatia’s book, Transformative Constitutionalism and Kenya: Law-Making, Political Process, and the State (2010–2025) is not written for a narrow legal audience, nor only for audiences who follow Kenya. In the current international context of eroding democratic and human rights protections, this book offers lessons for all.
Bhatia’s historical contextualization of the Kenyan constitution will be familiar to readers governed by it, but it supports his central argument that the 2010 constitution and subsequent court decisions upholding its provisions have fundamentally changed Kenya’s political and legal systems across five axes. Bhatia examines each axis of transformation in a dedicated chapter, starting with the most infamous: the Building Bridges Initiative (BBI) and its seventy-four proposed constitutional amendments. BBI was rejected by the High Court, the Court of Appeal, and the Supreme Court, and all three courts agreed that proposals to amend the constitution required bottom-up public participation. The Supreme Court did not support the lower courts’ decisions on the depth of required participation or the applicability of basic structure doctrine, which blocks amendments damaging a constitution’s normative core. Still, Bhatia asserts the Supreme Court decision left room for further argument and explains how basic structure doctrine helps prevent excessive amendments when one political party has a supermajority. He fails to note, however, that in Kenya’s current political context, basic structure doctrine could protect against major amendments when the executive coopts members of parliament from multiple parties.
Although the BBI case may be the most familiar, Bhatia’s most novel contributions are found in subsequent chapters, each organized around an axis of power negotiations. Whereas the BBI decision weighs the rights of citizens vis-à-vis the executive branch, others hinge on the division of power between branches of government and the rights and obligations of public institutions towards private ones. The chapter on the Constituency Development Fund case considers the Supreme Court’s refusal to grant executive branch powers to legislators within the districts they represent, which Bhatia frames within Kenya’s historical debate on resource devolution. The Mitu-Bell case chapter discusses socioeconomic rights, particularly related to land. Bhatia traces the legal history of these rights globally and in Kenya’s unique trajectory of displacement from colonialism to the 2007–08 postelection violence, prompting the centrality of land justice in the 2010 constitution and limits placed on private property rights. The Rose Wambui Mambo case chapter illustrates horizontal applications of constitutional protections of rights from infringement by public or private actors.
Bhatia’s last axis of analysis evaluates the constitution’s attempt to prohibit incumbent presidents from manipulating elections. It explores inherent challenges in placing such responsibility on the shoulders of a judiciary struggling to stave off cooptation and intimidation. As President William Ruto seeks reelection in 2027 facing allegations of manipulating the Independent Electoral and Boundaries Commission to win more votes than his approval ratings would likely afford him, this book could not be more timely. Across all five axes, Bhatia draws a common thread of courts’ successful resistance to executive branch overreach interspersed with missed opportunities where courts appeared to be swayed by coercion.
Bhatia’s work has two shortcomings, the first of which could be remedied by a sequel. While the book’s title claims to cover 2010–2025, its most recent court case reviewed is from 2023. This might have gone unnoticed if Kenya had not experienced a political watershed in 2024, when nationwide “Gen Z” protests disrupted long-held assumptions about Kenyan politics. The executive branch responded with a wave of arbitrary detentions, arrests, disappearances, extrajudicial killings, and other violations of the constitution. The courage shown by lawyers and judges in defending habeas corpus rights and the rights to assembly and expression was met with even more severe threats to judicial independence. The 2024–25 period in Kenya’s constitutional history must not be skipped over.
The second shortfall, ironically given the book’s relevance to broad audiences, is its pertinence to the average Kenyan. Only an estimated 10–20 percent of Kenyans access the formal justice system due to a growing income gap, high filing fees, and travel costs due to distance from rural populations. Cuts to foreign assistance to civil society for strategic litigation and pro bono services exacerbates the problem. In a recent speech, the Chief Justice of Kenya’s Supreme Court identified expanding justice sector accessibility as the key to strengthening Constitutional protections, and Bhatia should have also addressed this imperative.
