Calls for constitutional reforms were a major reason for the political changes that Kenya witnessed after 2010. A lot of people were unhappy with governance, the legal environment and the old constitution.
An archaic colonial constitution of 1963 still prevailed over the country 37 years after independence. The country was limited in many respects as the constitution did not provide an enabling environment for reforms. A constitution is the foundational law of any country and all other laws derive from it.
Any law that contravenes its provisions is illegal. Therefore, if a constitution contains limiting provisions then the legal environment of such a jurisdiction is severely curtailed.
While the old constitution did not expressly limit or hinder the enactment of several laws, it did not provide an enabling backdrop for the enactment of certain laws.
For example, it lacked provisions on leadership and integrity therefore laws on public governance were not common. Since the new Constitution has this provision, a number of laws on leadership and integrity have been enacted.
The entire legal environment has changed since 2010. The changes in the law have created a lot of opportunities for lawyers to practice and even diversify.
Constitutional law practice is an emergent area of law. The Constitution has allowed lawyers to specialise and curve a niche. A good example is the practice of election law which has completely changed.
Election law in Kenya is an emerging area of practice as the institutions and laws guiding the process are new. In the last election a lot of disputes were filed and handled by lawyers who were dealing with such matters for the first time. Precedents on election law practice in Kenya were set in 2013.
The Constitution has not only changed how legal practitioners practice but has also had a positive impact on businesses as it has created new laws. It is not possible to cover all the changes that businesses have experienced due to the new Constitution.
However, there has been a great change. The Bill of Rights provides for new fundamental rights that were not in existence before; for example consumer and economic rights.
The inclusion of consumer rights as fundamental human rights means that businesses have to uphold these despite other provisions on operations. Intellectual property rights have been included as property rights, which means that businesses have more protection.
A number of institutions have been created under the Constitution. Governance has also been provided for. The 5th schedule of the Constitution highlights new laws which require to be enacted to give efficacy to new provisions.
Some of the laws that were to be passed include land, consumer and leadership laws. A lot of laws have been passed since and existing ones were amended to include the new provisions.
Some of these legal reforms have been emulated in East Africa, putting Kenya on the global map as regards legal reforms. Shortly after Kenya passed its new Constitution, a number of African countries followed suit.
As a result a lot of regional laws borrow heavily from the Kenyan law. In fact in some instances the laws seem to be identical to the Kenyan law. It is still too early to tell the full impact of the new legal environment and how effective it is. However, there is a lot of positive impact.
Mputhia is the Founder of C MPuthia Advocates. [email protected]