The Violated Covenant: Kenya’s Constitutional Crisis And The Betrayal Of Democratic Ideals
The Mt Kenya Times 
The Betrayal Of Democratic Ideals
By Jerameel Kevins Owuor Odhiambo
“The trouble with Nigeria is simply and squarely a failure of leadership. There is nothing basically wrong with the Nigerian character. There is nothing wrong with the Nigerian land or climate or water or air or anything else. The Nigerian problem is the unwillingness or inability of its leaders to rise to the responsibility, to the challenge of personal example which are the hallmarks of true leadership.”
Chinua Achebe
These words, written about Nigeria decades ago, echo with haunting resonance across the borders of East Africa today, where Kenya finds itself trapped in a constitutional crisis that exposes the fundamental betrayal of democratic ideals by those entrusted with power. The irony is not lost on any observer of contemporary African politics: a nation that birthed one of the continent’s most progressive constitutions now witnesses its systematic dismantling by the very leaders who swore to protect and defend it. The current administration’s descent into authoritarianism represents not merely a political failure, but a moral catastrophe that strikes at the heart of Kenya’s democratic experiment.
The litany of constitutional violations currently unfolding in Kenya reads like a textbook case of democratic backsliding. Police forces have repeatedly used deadly force against peaceful protesters, with recent demonstrations resulting in multiple deaths, including at least sixteen people killed during nationwide anti-government protests, most of them by police. This represents a direct assault on the constitutional guarantee of the right to peaceful assembly and demonstration, enshrined in Kenya’s 2010 Constitution. The Preamble of this sacred document declares the people’s commitment to “nurturing and protecting the well-being of the individual, the family, communities and the nation,” yet we witness instead a government that has turned its machinery of protection into instruments of oppression. The Constitution’s opening words, “We, the people of Kenya– ACKNOWLEDGING the supremacy of the Almighty God of all creation… RECOGNISING the aspirations of all Kenyans for a government”, now ring hollow as these very aspirations are met with bullets and batons.
The philosophical foundations of legitimate government, as articulated by John Stuart Mill in his seminal work “On Liberty,” rest upon the principle that governmental power derives its legitimacy from the consent of the governed and must be exercised in service of the people’s welfare. Mill’s harm principle that actions become the concern of government only when they harm others has been inverted by the current Kenyan administration, which views peaceful dissent as harmful to state authority rather than essential to democratic governance. Hannah Arendt’s warnings about the banality of evil find expression in the bureaucratic machinery that processes orders for crowd control while turning a blind eye to the systematic violation of human rights. The current crisis demonstrates what happens when, in Arendt’s words, “the ideal condition for mob rule” is created through the erosion of public space and the criminalization of political opposition.
Article 1 of Kenya’s Constitution could not be clearer in its democratic mandate: “All sovereign power belongs to the people of Kenya and shall be exercised only in accordance with this Constitution. The people may exercise their sovereign power either directly or through their democratically elected representatives.” Yet the current administration has systematically subverted this fundamental principle, treating sovereign power as the exclusive domain of the executive branch while dismissing popular will as an inconvenience to be suppressed rather than a mandate to be respected. The selective application of laws enforcing those that consolidate power while ignoring those that protect rights represents what legal philosophers call “legal positivism” in its most pernicious form, where law becomes merely the command of the sovereign rather than the expression of justice and popular will.
The economic dimensions of this crisis cannot be divorced from its political manifestations. Young Kenyans continue to protest against high cost-of-living, lack of jobs, and police brutality, with protests driven by anger at corruption and the worsening neglect of public services. John Maynard Keynes understood that economic instability inevitably leads to political upheaval, and his analysis of the relationship between economic policy and social stability proves prophetic in contemporary Kenya. The government’s response to legitimate economic grievances with violence rather than policy reform demonstrates what economist Joseph Stiglitz calls “the failure of the market fundamentalism,” where adherence to ideological purity takes precedence over human welfare and democratic responsiveness.
The rule of law, that cornerstone of constitutional democracy, has been perverted into rule by law a distinction that separates democratic governance from authoritarian control. A.V. Dicey’s classical formulation of the rule of law requires that government officials be subject to the same laws as ordinary citizens, yet we witness instead a system where different standards apply to the rulers and the ruled. The constitution has become, in the words of the current administration’s actions, not a shield protecting citizen rights but a sword wielded against those who dare to question governmental authority. This represents what constitutional scholar Bruce Ackerman calls “constitutional rot” the gradual erosion of democratic norms and institutions from within, often under the guise of emergency powers and national security imperatives.
The international community’s response to Kenya’s democratic crisis has been notably muted, reflecting what political scientist Larry Diamond calls “democratic recession” a global phenomenon where democratic institutions face pressure from authoritarian populism and institutional capture. Human Rights Watch and Amnesty International have called for accountability for the 2023 protests and subsequent violations, noting that the lack of accountability for past abuses may have emboldened police and other state agents to violate rights. The silence of regional bodies and international partners in the face of these violations demonstrates the complicity of a world order that prioritizes stability over justice, economic interests over human rights, and geopolitical calculations over democratic principles.
The tragedy of Kenya’s current predicament lies not in the absence of democratic institutions, but in their systematic capture and perversion by those who were meant to serve as their guardians. Michel Foucault’s analysis of power relations reveals how seemingly neutral institutions can become instruments of oppression when captured by authoritarian impulses. The police, meant to protect and serve, become enforcers of political will; the courts, designed to interpret law, become rubber stamps for executive power; and parliament, the voice of the people, becomes a mere ratification chamber for predetermined policies. This institutional capture represents what political scientists call “competitive authoritarianism” the maintenance of democratic forms while emptying them of democratic content.
The path forward requires more than mere regime change; it demands a fundamental recommitment to the constitutional principles that once made Kenya a beacon of democratic hope in East Africa. As Ngũgĩ wa Thiong’o reminds us, “The real aim of a writer is to try to give or to restore to each and every person his or her humanity.” In the context of Kenya’s constitutional crisis, this restoration of humanity requires not only the protection of individual rights but the resurrection of collective dignity, the recognition that a people’s sovereignty is not a gift from their leaders but their inalienable inheritance.
The constitution is not merely a legal document but a social contract, a covenant between the people and their government, and its violation represents not just a legal breach but a moral betrayal that strikes at the very foundations of the social order. Until Kenya’s leaders recognize that their legitimacy derives not from their ability to suppress dissent but from their commitment to serve the people’s interests, the nation will remain trapped in a cycle of authoritarianism masquerading as democracy, where the constitution becomes a museum piece rather than a living document that guides the nation toward justice, equality, and human dignity.
The writer is a lawyer and legal researcher
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