The Devil’s Code

A key book about rights, separation of powers and the State, which assesses a decade and a half of transformative constitutionalism in Kenya through the lens of landmark constitutional judgments, discussing their international import and suggesting new pathways towards democratic constitutionalism. In 2010, after more than two decades of struggle, Kenya's new Constitution was born. Widely accepted to be "transformative" in nature, in the decade and a half since it was enacted, the Constitution has been at the center of national discourse. And in that time, the country's courts have been confronted with crucial and high-stakes constitutional disputes, which are both distinctively Kenyan in nature, but also, are disputes that have long been common to constitutional democracies around the world: they include issues around constitutional change, federalism, imperial presidencies, the role of the legislature, election disputes, land rights, and horizontality, among others. Drawing comparisons with constitutional jurisdictions globally, which often rely upon precedent from each other's jurisdictions, this book examines transformative constitutionalism under the 2010 Constitution, and shows that while Kenyan courts have been informed by - and been in conversation with - global precedent, they have crafted unique and particular solutions. The book excavates the engagement of Kenyan Courts with the 2010 Kenyan Constitution to highlight the unique and innovative contributions that Kenyan courts have made to global constitutional problems and to suggest pathways for the future. Showcasing the jurisprudence of the courts in action, this book discusses how and when the power to amend a constitution can be limited or constrained and how constitutional change can be insulated from political interference. It examines issues of parliamentarianism and devolution in the context of the national controversy around constituency development funds, and reveals how Kenya provides a model for understanding constitutional separation of powers. It looks at the process for challenging presidential elections, and details how the Supreme Court has aimed to set out clear legal and evidentiary standards for how a court ought to deal with a pure political dispute - something with which judiciaries around the world have struggled. It explores the evolution of socio-economic rights, including the right to housing, non-discrimination, and equality before the law, as well as the question of how transformative constitutionalism interrogates private power. Placing contemporary Kenyan constitutionalism at its heart, this work of comparative constitutional law asks what the ongoing, global constitutional conversation can learn from the Kenyan experience under its new order.