The constitution as a disposable convenience: How Kenya’s ruling elite weaponize situational ethics against the republic
The Mt Kenya Times 
By Jerameel Kevins Owuor Odhiambo
On 27 August 2010, Kenyans stood in Uhuru Park and watched the late President Mwai Kibaki promulgate a new Constitution the product of decades of blood, tears, and hard-won negotiation after the failed 2005 referendum and the near-catastrophe of 2007–08. That document was not a suggestion. It was a deliberate, popular repudiation of imperial presidency, ethnic patronage, and the culture of impunity that had defined the Kenyatta and Moi eras. Fifteen years later, the same class of politicians who swore oaths on that Constitution treat it as an optional accessory which is useful when it legitimizes their power, disposable when it constrains their appetites. This is not mere hypocrisy. It is the systematic practice of situational ethics: the doctrine that morality and law bend to the convenience of the moment and the interests of those who hold the keys to State House, Parliament, and the security apparatus.
The pattern is ancient in Kenyan political DNA. Jomo Kenyatta inherited a Lancaster House Constitution designed to disperse power and protect minorities; he systematically centralized it. Daniel arap Moi perfected the art of constitutional amendment-as-weapon, turning the supreme law into a rubber stamp for personal rule. The 2010 Constitution was meant to break that cycle. Instead, successive governments first under Uhuru Kenyatta, then under William Ruto have revived the old habit under new rhetoric. They invoke Article 1’s sovereignty of the people when they need electoral legitimacy, then ignore Chapter Six on leadership and integrity when appointing the compromised. They cite the Bill of Rights when foreign partners demand democratic credentials, then unleash security forces whose conduct mocks every provision on life, dignity, and assembly.
Consider the data that refuses to be spun. Transparency International’s Corruption Perceptions Index continues to place Kenya in the lower ranks hovering around 32 out of 100 in recent years, ranking near 121 globally evidence of a public sector still widely perceived as captured. Independent estimates put annual losses to corruption, illicit flows, and wasteful spending in the range of $1.5 billion or higher; the Ethics and Anti-Corruption Commission has previously cited figures approaching 7–8 percent of GDP. These are not abstract numbers. They are classrooms without textbooks, hospitals without drugs, roads that collapse after one rainy season, and a debt burden that mortgages the future of the unborn. Public debt has hovered in the mid-to-high 60s as a percentage of GDP even after periods of fiscal consolidation, sustained in part by the very practices the Constitution’s public finance provisions were written to prevent.
The disregard is categorical. Parliament has repeatedly failed to enact the two-thirds gender principle despite successive court orders, treating judicial directives as advisory opinions rather than binding law. Executive officers have ignored court orders on media freedom, deportation, appointments, and environmental safeguards with a frequency that former Chief Justices have publicly condemned as corrosive of constitutionalism. During the 2024 Finance Bill protests, security forces responded with live ammunition, abductions, and enforced disappearances documented by the Kenya National Commission on Human Rights, Missing Voices, and international observers despite clear constitutional guarantees of peaceful assembly and the right to life. Deployment of the Kenya Defence Forces raised further questions of constitutional process. The message was unmistakable: the Constitution protects the powerful; the rest of us are governed by the ethics of the situation.
This is situational ethics in its purest political form. Situational ethics, in its original theological framing, argued that love might justify bending rigid rules in extreme circumstances. Kenya’s political class has perverted the concept into a permanent operating system: the rule is binding only when it serves the regime’s immediate interest. When a court order threatens an ally, it becomes “judicial overreach.” When Chapter Six threatens a preferred cabinet nominee, integrity is redefined as “electability.” When citizens exercise Article 37 rights, the same leaders who once marched under the Constitution’s banner suddenly discover the virtues of “order” and “stability.” The correlation is stark and damning. The more tightly power is concentrated around a narrow elite, the more elastic the Constitution becomes in their hands. The further the distance between the political class and ordinary Kenyans, the more readily the supreme law is treated as inconvenient scaffolding rather than load-bearing foundation.
Literary devices illuminate the moral bankruptcy. The Constitution has become a political chameleon changing colour to match the needs of whoever currently occupies the high table. It is a buffet from which the powerful select only the dishes that satisfy their hunger, leaving the nutritious but bitter vegetables of accountability uneaten. It is a sacred text recited on oath-taking day and then locked in a drawer until the next crisis of legitimacy. Irony saturates the spectacle: leaders who rose to power promising to “protect the Constitution” now treat its most transformative chapters as optional. The deep insight is this: a constitution that is applied selectively ceases to be a constitution at all. It becomes a set of rhetorical weapons in an elite contest. Once that happens, the social contract frays. Citizens stop believing that the rules bind the rulers. When belief collapses, the only remaining languages are force and patronage languages Kenya has already spoken too fluently and at too high a cost.
History offers no comfort to those who imagine this is temporary. The same selective constitutionalism that produced the 1969 and 1982 amendments, the same culture that produced the 2007–08 post-election violence, is alive in the present. The 2010 document was meant to interrupt that continuum. Instead, it has been domesticated by the very forces it sought to restrain. Original thought demands we name the mechanism: the Kenyan political elite has perfected the art of constitutional capture without formal amendment. They do not always need to rewrite the text; they simply refuse to live by it, knowing that institutional weakness, ethnic mobilization, and public fatigue will eventually normalize the breach. Each unpunished violation teaches the next generation of leaders that the Constitution is theatre, not constraint.
This cannot stand. The actors who must act are many and their duties are clear. The Judiciary must continue to speak with institutional courage, issuing orders that are not only principled but enforceable, and documenting every act of contempt with relentless precision. Civil society and the legal profession must refuse the temptation of selective outrage defending the Constitution whether the government of the day is favoured or despised. Citizens, particularly the young who stormed the streets in 2024, must convert episodic anger into sustained institutional pressure: demanding lifestyle audits, rejecting compromised candidates at every level, and treating Chapter Six as a living standard rather than a campaign slogan. International partners who fund Kenya’s development and security architecture must stop treating constitutional compliance as a soft variable; conditionality that ignores governance merely subsidizes the erosion. And the politicians themselves those currently “in government” and those who hope to replace them must be told, without diplomatic softening, that the oath they took is not poetry. It is a binding covenant with a people who have already paid too high a price for their predecessors’ situational morality.
A constitution is not a convenience. It is the architecture of a people’s collective self-respect. When those entrusted with its custody treat it as disposable, they do not merely break the law; they declare that the people themselves are disposable. Kenya has walked that road before. It ends in blood, broken institutions, and a generation that inherits only the ruins of promises once made in their name. The time for polite analysis has expired. The Constitution is either supreme or it is nothing. Those who govern must choose and the rest of us must make the cost of the wrong choice higher than the temporary comfort of power.
The writer is a social commentator.
Similar Posts by The Mt Kenya Times:
- Porsche 911 GT3: The driver’s car that defies the spec sheet
- Name, shame, ban: Police put violent political actors on notice ahead of 2027
- Kanja puts recruits through their paces ahead of Kiganjo passing-out
- Humbelani Priscilla Nemanzemba: Building Africa’s entrepreneurial future, one business at a time
- Salary: The sweetest contraceptive ever invented
About the Author
