Subversion of The Constitution: Situational Analysis of Disobedience of Court Orders from 2010 to 2024

Abstract

The constitutional review process in Kenya, which culminated in the 1980s, gained significant momentum in 1991 when the Kenya African National Union (KANU) repealed section 2A of the Constitution to restore multiparty democracy. This restoration marked a pivotal expansion of political space and the promise of democratic governance. However, the State’s continued failure to deliver meaningful progress in democracy, governance, and development fuelled a deeper demand for comprehensive constitutional and institutional reforms. The adoption of the new Constitution on 27 August 2010 was a historic milestone, embodying the hopes and aspirations of Kenyans, particularly the Wanjiku’s, who represent the ordinary citizen, for a just, accountable, and inclusive governance framework.Over fifteen years since the promulgation, the Constitution has been tested by persistent challenges, notably systematic disobedience of court orders by State actors and other powerful interests. This disobedience not only undermines the authority of the Judiciary, which has remained resolute in upholding the rule of law and protecting constitutionalism, but also erodes the very foundations of democracy and public trust in state institutions. This paper critically examines the trajectory of constitutional implementation in Kenya, highlighting the dissonance between the optimism at inception and the stark realities encountered during implementation. It interrogates the causes and implications of persistent non-compliance with judicial directives and explores how this pattern compromises the social contract and the rights of the Kenyan people. The analysis of the paper underscores the consequences of disobedience of court orders on governance, the rule of law, and citizens’ access to justice, emphasizing its chilling effect on democratic consolidation and transformative constitutionalism. It decrees concerted efforts to reinforce judicial authority, institutional reforms to ensure accountability, and civic education to empower Kenyans to demand adherence to constitutional norms. Ultimately, this reflection serves as a clarion call to action to reclaim the promise of the 2010 Constitution and ensure that Wanjiku’s optimism transforms into tangible democratic gains and the goal of social justice for all Kenyans.