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The Constitutional Law


Constitutional law is the body of the rules, doctrines and practices that govern the operation of political communities. In modern times the most important political community has been the state.

Mordern Constitutional law

Modern constitutional law is the offspring of nationalism. As well as of the idea that the state must protect certain fundamental rights of the individual. As the member of states has multiplied, so have constitutions and with them the body of constitutional law.

Though sometimes such law originates from sources outside the state. The protection of individual rights, meanwhile, has become a concern in the mid-20th century.

In the broadest sense, a constitution is a body of rules governing the affairs of an organized group. A parliament, a church congregation, a social club. Or a trade union may operate under the terms of a formal written document labelled a constitution.

Who should have a constitution

Not all the rules (e.g. bylaws and customs) also exist. By definition, the rules mentioned in the constitution are considered to be basic. Such that, until their modification according to an appropriate procedure. All other rules must conform to them.

Thus, the presiding officer of an organization may be obliged to declare a proposal. Out of order if it is contrary to a provision in the constitution. Implicit in the concept of the constitution is the idea of a “higher law”. That takes precedence over all other laws.

Every political community, and thus every state has a constitution. At least in so far as it operates its important instructions according, to some fundamental body of rules.

By this conception of the term, the only conceivable alternative to a constitution is a condition of anarchy. Nevertheless, the form a constitution may take varies considerably.

Constitutions may be written or unwritten, codified or uncodified. And complex or simple, and they may provide for vastly different patterns of governance. In a constitutional monarchy, for example, the constitution circumscribes the sovereign’s power. Whereas in an absolute monarchy, the sovereign has unqualified powers.

A political community’s constitution articulates the principles determining the institutions. To which the task of governing is entrusted, along with their respective powers.

In absolute monarchies as in the ancient kingdoms of East Asia, the Roman Empire. In France between the 16th and 18th centuries, sovereign powers were concentrated in one person the king or emperor. Who exercised them directly or through subordination agencies that acted according to his instructions.

Ancient constitutional law

In ancient republics, such as Athens and Rome, the constitution provided as do the constitutions of most modern states. For distribution of powers among district institutions.

What to find in a constitution..

But whether it concentrates or disperses these powers. A constitution always contains at least the rules that define the structure and operation of the government that runs the community. A constitution may do more than define the authorities endowed with powers to command.

It may also delimit those powers in order to secure against them certain fundamental rights of persons or groups. Western political philosophy has the idea that there should be limits on the powers that the state may exercise.


Constitutional concepts


Well before the advent of Christianity. Greek Philosophers thought that in order to just positive law- the law was actually enforced in a community. Must reflect the principles of a superior ideal law which was known as natural law.

Similar conceptions were propagated in Rome by Cicero (106-43 BC) and by the stoics. Later the church fathers and scholasticism. Held that positive law is binding only if it does not conflict with the precepts of divine law. These abstract considerations were received to a certain extent in the fundamental rules of positive legal systems.

In Europe during the middle ages, for example, the authority of political rulers. Did not extend to religious matters reserved to the jurisdiction of the church. Their powers also were limited by the rights granted to at least some classes of subjects.

Disputes over the extent of such rights were not infrequent. And sometimes were settled through solemn legal “ pacts” between the contenders. Such Magna Carta in America (1215). Even the “ absolute monarchs of Europe did not always exercise genuinely absolute power.

The king of France in the 17th or 18th century, for example, was unable by himself to alter the fundamental laws of the kingdom or to disestablish the Roman Catholic Church.

Legal limitations on the govenrments power

Against this background of existing legal limitations on the power of governments. Decisive turn in the history of western constitutional law occurred when political philosophers developed a theory of natural law based on the “inalienable rights” of the individual.

The English Philosopher John Lockie (1632-1704) was an early champion of the doctrine. Others followed Locke, and in the 18th Century, the view they articulated became the banner of the enlightenment.

The doctrine of natural rights was a potent factor in the reshaping of the constitution of western countries in the 17th, 18th and 19th centuries.

The revolution…

An early stage of this process was the creation of the English Bill of Rights. (1689), a product of England is glorious revolution. All these principles concerning the division of governmental functions and their appropriate relations were incorporated into the constitutional law of England and other Western Countries.

England also soon changed some of its laws. So as to give more adequate legal force to the newly pronounced individual freedoms.

The Kenyan Constitution…

In Kenya’s context, the independence constitution has been a subject of sustained “abusive constitutionalism”. It has been amended several times before 1992. Which has worked to deprive it of a propensity. To act as a tool of control or an incubator of democracy.

After 1992, Kenya resorted to ad hoc constitutional review processes. In the form of constitutional amendments and attempted constitutional revisions until 2008. When it was felt that the fruition of such ad hoc measures was not reliable and sufficient framework for democracy.

In particular, whereas most of these reforms were directed at the electoral body and courts. Substantive failure by the then powerful opposition group, Orange Democratic Movement. To present its grievances to court over the 2007 general elections. Exposed the ineffectiveness of the ad hoc measures and consequently provided an impetus for urgent constitutional reforms processes.

These processes culminated in the constitution of Kenya 2010. That sought not just to reform the judiciary and the electoral but other (if not every) aspects of Kenya’s Public regulation. Including Human rights, institutions, public finance, land, and national security.

BY David Kamau

Email: dkamauthika@gmail.com

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