The process of dismantling Kenya’s 2010 Constitution started formally this week. Two things happened. Firstly, members of the National Assembly passed the Constitution Amendment bill 2025 after garnering the two-thirds threshold.
The bill seeks to amend the Constitution to anchor three so-called development funds into the Constitution: the National Government Constituencies Fund (NG-CF), the Senate Oversight Fund (SOF), and the National Government Affirmative Action Fund (NGAAF).
According to the National Assembly website, during the Second Reading of the Bill, 304 Members of Parliament voted in its favour, with none opposing. At the Third Reading, 298 MPs supported the Bill, registering a unanimous vote.
Needless to state, these amendments go against several court rulings that have found the NG-CF and its predecessor, CDF, unconstitutional as they go against the interests of counties and the rationale of the devolution system as a whole. The resources are simply slash funds to maintain local patronage and enrich leaders.
The so-called public participation effort that was undertaken before the passage of the bill was an attempt to hijack a constitutional requirement to serve narrow interests. MPs, who were put in charge of the process despite the obvious conflict of interest, simply mobilised their supporters to the so-called public participation meetings. It reminded me of what happened last year during the impeachment of former deputy president Rigathi Gachagua, which is now giving President Ruto sleepless nights.
Interestingly, this process is led by MP Paul Otiende Amolo, one of the people who were privileged to serve in the Committee of Experts, which wrote the constitution before the 2010 referendum.
Otiende is a member of the Orange Democratic Movement (ODM) a political party associated with former Prime Minister Raila Odinga, often celebrated for his role in the making of the 2010 Constitution. Raila has made some feeble attempts to protest the amendments.
However, the Orange party is in the process of being taken over by a younger cadre of hungry leaders who have zero commitment to the welfare of citizens. The party was founded as part of a protest movement against the Kibaki-era chauvinism of the then Kikuyu ruling elites who had subverted the constitution-making process. In fact, the whole reason for being of the Orange party was to secure the constitution-making process as a citizen-led process.
Secondly, the process of discussing a bill sponsored by Nairobi Woman Representative Esther Passaris, aimed at curtailing the freedoms of ordinary Kenyans to express themselves, to associate, to assemble and to petition public authorities contrary to the Constitution, started in earnest. This particular discussion is happening with the ongoing Gen-Z protests against executive dictatorship and the excesses of the ruling elite.
Esther Passaris is a direct beneficiary of the 2010 Constitution, which created the position of women representative to boost the representation of women. Clearly, increasing the representation of women was not meant to be an end in itself. It was meant to ensure that attention is given to laws that are in favour of women empowerment.
I can hardly remember Passaris sponsoring any bills to empower women. Like other middle-class and rich women, she probably sees the National Assembly through the narrow prisms of class and privilege.
The desire to dismantle Kenya’s Constitution did not start this week. In fact, consistent efforts have been made since 2010 to change the country’s parent law with the intention of dis-empowering citizens and putting more power in the executive and the ruling elite.
When the Constitution declared in its very first Article that, “All sovereign power belongs to the people of Kenya and shall be exercised only in accordance with this Constitution,” it sought to dismantle a system that only serves the interests of the ruling elites.
This is the system that enabled the elites to run roughshod over citizens over the years, engaging in corruption, piling up public debts that will take generations to pay, and, thereby maintaining a system that permanently relegates the majority of citizens to the terrible indignity of perpetual poverty.
The declaration of the people’s sovereignty was the first (but only the first) step towards ending the reign of the neo-colonial state in Kenya. This positive development in constitutional design, admired in Africa and across the world, created the basis for a renewed class struggle, which has been simmering just below the surface since 2010.
By embracing the protection of all categories of rights – civil, political, economic, social, cultural, environmental, consumer rights – the Constitution created an airtight system with the potential, for the first time in the country’s history, to positively impact the interests and welfare of citizens.
It required the executive to be fully faithful to the values of accountability, transparency, public participation, social justice, equality, etc., (Article 10) and empowered Parliament (the National Assembly and the Senate) as well as independent commissions like the Office of the Ombudsman (which, ironically was also chaired by Paul Otiende Amollo) to serve the interests of the people by effectively over-sighting the executive.
But the ruling elites deem that the economic interests of the people clash with a system that was set up to serve the minority at the expense of the majority. They deem that their ability to continue looting the state, an orgy that started in the country’s colonial roots when it was only serving the interests of the minority white settler population, was being severely restricted.
In addition, their own integrity was being made a subject of constitutional audit and control. Chapter Six of the Constitution sought to increase scrutiny on the leaders themselves – at their individual capacity.
Article 73 (responsibilities of leadership) requires, among others, that public authority must be exercised in a manner that “demonstrates respect for the people.” It states, with judicial finality, that the authority vested in a state officer is based on the “responsibility to serve the people, rather than the power to rule them.”
This is the deeper rationale that has guided attempts to amend the constitution.
In my article “Only citizens can stop elites changing the Constitution,” written for African Arguments in 2018, I argued that changing the Constitution could erode its progressive elements, especially those relating to the people’s empowerment and freedoms. Back then several attempts had been made to change the constitution mainly to create additional positions for members of the ruling families and their acolytes, and to extend the presidential term to seven years.
It is worth noting at this point that – like the situation was in the 1960s, 1980s, 1990s, etc. – elite-driven constitutional changes have never been about empowering citizens.
They have always been about piling more power on the executive, which in turn is aimed at continuing the neo-patrimonial patronage system that benefits the ruling elites, their relatives and friends.
Looking at it from this historical perspective, the current amendments, if not successfully challenged by the sovereign citizens of Kenya, will take the country back to the pre-2010 constitutional situation. Once they have overcome the hurdle of amending the Constitution to serve their interests, the elites will never stop.
This is what happened with Kenya’s so-called independent constitution such that, by the late 1990s, the President could remove the security of tenure of important state officials like judges, without any protest, thus undermining key constitutional principles that shape the relationship (the social contract) between the people and their leaders.
Indeed, deconstructing the post-independence “Imperial Presidency” and the exploitative, ruthless, ethnic, elite, violent, predatory, merciless, empathy-less authoritarian system is what coalesced progressive social forces towards the 2010 constitutional referendum.
The current amendments are, therefore, a declaration of war on the sovereignty of the people of Kenya. It is a declaration of war on the constitutional order. A coup!
It is also interesting that the constitutional amendments are coming at a time when Kenyan Gen-Z’s have been protesting against misuse of power and resources by the ruling elites, which is damaging to their own future prospects. The energy, power, defiance, perseverance and persistence of the Gen-Z have shocked and continue to shock the ruling elites across their political and ethnic enclaves.
The 2024 protests, which saw more than 60 Kenyans killed by the trigger-happy regime police (as opposed to a people’s police as envisaged by the Constitution), also forced the President to rescind the Finance Bill, 2024. This represented a revolutionary step in reclaiming and reasserting the people’s power in line with the constitutional declaration of the people’s sovereignty, a key antidote to the neo-colonial state.
The successful occupation of the National Assembly premises by Gen-Zs on 25th of June 2025, was the ultimate signal that the ruling elites are, in the final analysis, answerable to the people and not to themselves and their narrow business interests. After all, it is the interests of over 50 million people against some 10,000 or so members of the ruling elites and their families.
The more recent extremely brutal killing of Albert Ojwang by the regime police and the continued harassment of the youth, is part of the fight back plan by the ruling elites.
The question now is whether these initiatives will succeed in intimidating the people of Kenya back into submission to the narrow interests of the local elite comprador class and the foreign interests that they serve.
The war has been officially declared!
Morris Odhiambo is a scholar,…
