By: John Wangai
This year on 27th August, we will commemorate fifteen years since Kenya promulgated the new constitution which ushered in a new constitutional dispensation. It is noteworthy, that the new constitution introduced key legal provisions which inter alia include the bill of rights, involvement of the people in decision making commonly referred to as public participation, separation of powers and independence of institutions, devolution, among others.
The process that led to the culmination of the new constitutional dispensation was pioneered by the young Turks who were the heroes and heroines of the second liberation struggle also known as the struggle for multipartism.
The struggle was necessitated by the clamour for multi-party democracy after the then constitution was amended in 1982 and Section 2A introduced which formally rendered Kenya a single-party state.
In 1991, the draconian Section was repealed and that ushered back multi-party democracy in the 1992 general elections. However, that did not stop the struggle as people continued to champion and agitate for constitutional reforms.
In 2002, the NARC government was overwhelmingly voted into office and among it’s key campaign promise was fast- tracking constitutional reforms and delivering a new constitution within the first 100 days in office. Unfortunately, the Mwai Kibaki led government suffered a major setback on 21st November 2005 after their draft constitution was rejected in the Banana / Orange referendum.
Consequently, Kenyans went to the 2007 polls deeply divided along ethnic and tribal lines, which led to the post-election violence where over 1000 Kenyans lost their lives and thousands others were displaced.
Remarkably, on 28th February 2008 after days of mediation between the government and the opposition leaders, a process that was spearheaded by the late Kofi Annan, the parties signed the national accord and agreed to work together in a grand coalition government to achieve constitutional, institutional, land and electoral reforms which were long overdue.
As the old Swahili saying goes ‘Hayawi hayawi huwa’ simply translated to mean that what may seem impossible eventually happens, the struggle, loss of lives and shedding of blood were not in vain as on 4th August 2010, Kenyans overwhelmingly voted for the new constitution and it was later promulgated by the late President Mwai Kibaki on 27th August 2010 thereby ushering in a new constitutional dispensation.
Therefore, it is uncontroverted and incontrovertible that protests and demonstrations played a huge role in the liberation struggle. The far-famed and renowned Saba Saba day for example is testament to that assertion.
It is celebrated annually to commemorate the landmark nationwide protests and demonstrations that happened on 7th July 1990 where Kenyans were agitating for the repeal of the draconian Section 2A of the then constitution which had introduced a single-party state. The government reacted harshly to the protesters and as a result, hundreds lost their lives, thousands others were badly injured and others were detained without trial.
Renowned Indian writer Shashi Tharoor in his book, The Great Indian Novel, states that “the past is not necessarily a guide to the future, but it does partly help explain the present.” Thus, it is not only regressive but also retrogressive for a lawmaker to propose a bill that seeks to curtail the constitutionally guaranteed right to demonstrate, picket, assemble and present petitions to public authorities as encapsulated under Article 37 of the Constitution of Kenya 2010.
The proposed bill by Nairobi Women Representative Esther Passaris which seeks to abridge the right to demonstrate, picket, assemble and present petitions to public authorities contravenes, violates and infringes upon the Constitution of Kenya which is the supreme law of the land and is therefore null and void ab initio.
It’s invalidity is further underscored by Article 2(4) of the Constitution which provides that any law, including customary law, that is inconsistent with the Constitution is void to the extent of the inconsistency.
The unlawful and illegitimate proposals seek to water down the gains that we’ve made as a nation. They are also a mockery and akin to dancing on the graves of those Kenyans who lost their lives during the liberation struggle which enabled us to enjoy freely the fundamental rights and freedoms provided for under Chapter Four of the Constitution.
Therefore, we should all rise to the occasion irrespective of our political affiliations and defend, uphold and protect the Constitution which is under serious threat.
JOHN WANGAI
PUBLIC INTEREST LITIGATION ADVOCATE
Felix Njenga 
Xinhua Media