Following the 2007 post-election violence, this chapter examines the effects one of the important products of the transitional justice process, the (albeit protracted) promulgation of the 2010 Constitution and its extensive Bill of Rights; and the reception and effects of the constitutionally enshrined Two-Thirds Gender Principle at the 2013 elections, the first to be held under the new dispensation. As we have seen, the 2010 Constitution is heir to Kenyan political and cultural memory steeped in decades of resistance to autocracy, and multiple movements for constitutional reform. The history of demands from Kenyan civil society for constitutional reform is inextricably linked to demands for a return to pluralist politics, and for tangible improvements in service delivery and social justice outcomes. The drafting of this Constitution was the latest moment in the dominant, cyclical narrative of Kenya’s always imminent democratic rebirth.

The persistent post-independence calls for a new constitution encompass demands relating not only to the primacy and integrity of the text of the Constitution itself, but also to the realisation of constitutionalism, a system of values that includes the separation of powers, the rule of law, the protection of fundamental rights and freedoms, and the promotion and protection of institutions that support democracy. Indeed, Murunga, Okello and Sjögren characterise the postcolonial struggle as one driven by a rejection of the ‘African experience of diluted constitutionalism … justified and practised by … African leadership as a trade-off between democracy and development’. As previous constitutional renewal processes in Kenya have shown, however, the mere fact of constitutional reform alone is not sufficient to guarantee governance reform. Although it inherited the work of years of local activism around constitutional reform throughout the late colonial, and postcolonial periods, the 2010 Constitution was primarily developed and deployed as a direct response to the 2007 post-election violence and is, consequently, a product and keystone of the liberal peacebuilding project in Kenya – a process, as I argued in Chapter 4, that privileges security and state stability over building an organic and vernacular positive peace.

The explicit focus of the new Bill of Rights on gender and minority rights sits incongruously beside the local history of politically expedient colonial and post-independence constitutional reform detailed in Chapter 2.