LEGAL RESEARCH AND WRITING
Entrenchment: 2010 Kenya Constitution

LEGAL RESEARCH AND WRITING
Entrenchment: 2010 Kenya Constitution

INTRODUCTION The Kenya constitution is a codified constitution, as all laws are clearly spelt out in an enclosed document. Entrenchment deals with the legal procedures for modification of a constitution. An entrenched constitution recognizes the constitution and its process of modification as different from other laws .Key features of a codified constitution, entrenched – The provisions laid out in a codified constitution are entrenched, which means that they are difficult to amend or abolish. Some constitutions contain certain clauses which prevent them being changed at all. A good example would be the German ‘eternity clause’. Others prevent the changing or amending of parts of the constitution during times of conflict, or before a certain time period.
An un-entrenched constitution does not recognize the constitutional law as different or supreme and thus constitutions can be modified as easily as statutory laws. The procedure for modifying a constitution is often called amending. Amending an entrenched constitution needs numerous procedures than modification of a statue. Sometimes, this is because the constitution is considered supreme law. Article 2(1) of the Kenyan Constitution of 2010, states that the Constitution is the supreme law of the republic and binds all persons and all state organs at both levels of the government.
Regardless of whether constitutional modifications require more complex procedures, all states with an entrenched constitution recognize the difference between constitutional law and ordinary statutory law. Procedures for ratification of constitutional amendments vary across states. In a federal system of government, the approval of a majority of state/provincial legislatures may be required. Alternatively, a national referendum may be required for amending the constitution, as is the case in Kenya.
In constitutions that are not entrenched, no special procedure is required for modification of the constitution. In the small number of countries with un-entrenched constitutions, the constitution is not recognized with any higher legal status than ordinary statutes. In the UK, for example, laws which modify the constitution are passed on a simple majority in Parliament. The concept of "amendment" does not apply. This is because, the procedure for modifying the constitution are the same as that of modifying any other national law.
HOW DO WE KNOW THAT THE CONSTITUTION OF KENYA IS ENTRENCHED?
2.1 BRIEF HISTORY OF THE 2010 CONSTITUTION
The 2010 Constitution of Kenya, currently in force, replaced the 1969 constitution, that itself had replaced the 1963 independence constitution. The constitution was presented to the Attorney General of Kenya on 7 April 2010, officially published on 6 May 2010, and was subjected to a referendum on 4 August 2010. The new Constitution was approved by 66% of Kenyan voters. The constitution was promulgated on 27 August 2010.It required procedure's before it became law .People had to vote it in ,and for it to be amended we have to have a referendum.

2.2 ENTRENCHMENT
Entrenchment is the legal protection of certain values from subsequent repeal and is divided into two types: substantive and procedural. The substantive method provides the strongest protection and effectively places certain subject-matters beyond the legislative capability of parliament through an appeal to higher principles or sources of law. The latter is more flexible and can be changed through adherence to a defined procedure and therefore offers varying levels of protection along a continuum.
2.3 ENTRENCHING FUNDERMENTAL RIGHTS There may be a case for entrenching fundamental rights. Procedurally, entrenching rights would prevent the tyranny of small majorities, and the larger the margin required by the form and manner, the larger the size of the majority required to cause tyranny. John Laws argues” that it is a fundamental principle that there must be basic rights in a democratic society, and that if a society allows those rights, they must be protected from political power by limiting those powers. This is achieved through the conception of ‘higher-order’ laws which cannot be abrogated like ordinary laws.
2.4 HOW ENTRENCHMENT IS DONE?
The possibilities of entrenchment within a particular jurisdiction depend both upon the type and source of sovereign power as well as the method by which it legislates. As an issue of morality, entrenchment is capable of either protecting certain fundamental rights from tyranny, or perpetuating anachronistic ideals which are out of touch with contemporary values.In identifying values suitable for legal entrenchment, the denial of similar values of this privilege may be difficult to justify and could itself become another source of injustice.
This is because if rights could be abolished by the government, they will not be rights as such, but merely privileges.
This argument is supported, as noted by Salmond, by democratic principles: (Parliamentary sovereignty) is law because it is the law, and for no other reason than that it is possible for the law itself to take notice of. No Statute can confer this power upon Parliament, for this would be to assume and act upon the very power that is to be conferred.
3. HOW TO AMMEND THE ENTRENCHED CONSTITUTION (a look at the current push for a referendum)
There are two ways of amending the Constitution- parliamentary and popular initiative. Under the parliamentary initiative, an amendment Bill is introduced to either houses of Parliament and must be supported by at least two thirds of the members in both houses to sail through. The “tyranny of numbers” both in Senate and National Assembly would frustrate any amendment that is not popular with the ruling party/ coalition, here in The Jubilee Coalition. Aware of this challenge, CORD and the Council of Governors have opted for the popular initiative approach.
3.1 CONDUCTING A REFERENDUM
The referendum shall be conducted by IEBC. Similarly, the operating legislation is the Elections Act. After the bill has been approved by the county assemblies, presented to Parliament and rejected or the amendments relate to issues under Article 255 (1) such as devolution, the President shall refer the issue(s) to IEBC conduct the referendum. IEBC shall frame the question (s) to be determined during the referendum and the proposed answers. It shall then publish the question and answers options for the voters in the Kenya Gazette upon approval by the National Assembly. IEBC may also assign a symbol to each answer to the referendum question. It shall also set the referendum day and campaign schedule. The referendum question shall be decided by a majority of citizens voting. On the other hand, the issues under Article 255(1) which shall pass if at least 25% of the registered voters in each of at least half of the counties vote in the referendum and that the amendment is supported by a simple majority of the citizens voting. The Election Act also provides an elaborate dispute resolution mechanism. The conduct, results and validity of a referendum may be challenged by a petition to the High Court.
3.2 POPULAR INITIATIVE
Under the popular initiative, amendments may be proposed by a petition signed by at least one million registered voters. The petition takes the form of general suggestions or formulated draft bill by the promoters. The signatures and the draft bill shall then be presented to the Independent Electoral and Boundaries Commission (IEBC) for verification. If IEBC is satisfied that the one million signatures threshold has been attained, it shall then submit the draft bill to each county assembly for consideration. If the draft bill is approved by a majority of the county assemblies- at least twenty four county assemblies, it shall be introduced to parliament. The Bill would pass if supported by the majority of members in both houses. Again, CORD and the Council of Governors do not expect parliament to pass the Bill for want of numbers. However, if parliament fails to pass the bill, Article 257 (10) provides that If either house of parliament fails to pass the bill ,or the bill relates to a matter specified in 255(1),the proposed amendment shall be submitted to the people in a referendum, which is what the promoters are banking on. Parliament can actually save Kenyans from spending money on referendum by passing the bill painlessly.
Article 255 (1) of the Constitution however provides that there are constitutional amendments which must be passed through a referendum (whether they are initiated through the parliamentary or popular initiatives). These include matters touching on Supremacy of the Constitution, territory of the Kenya, sovereignty of the people, national values and principles of government, Bill of Rights, term of office of the President, independence of the Judiciary and the commissions and the independent offices, functions of parliament, devolution and amendment of the Constitution.
4. CONCLUSION In conclusion, in countries where constitutions are entrenched, they have used the education system to achieve this hence creating a society informed on matters that concern them fundamentally. Thus, it is for this reason, I propose that the government incorporate civic education into the regular education system in order to better equip members of the public on matters constitution.
It should also be noted that almost by virtue of being Kenyan, we have a tendency of being driven by the spar of the moment and we forget just as fast. Thus, in my opinion, it is for this reason, we as citizens ought to work together to deliberately ensure we entrench constitutionalism in our day to day lives. This can be done incorporating our national values in our day to day lives.
Kenyan need to be aware that constitutionalism can only be entrenched if the government now puts in place strong institutions that can stand the test of abuse of office and radically limit excess of corruption and have in place policies that are geared to ensuring that the people are empowered.
Everyone must make their rightful mandate to ensure that constitutionalism is entrenched by all citizens of this Republic.
It is after this, that we shall have constitutionalism translating to a political society where government officials are not free to do things they please and in any manner that they deem suitable. It is only then that they shall be bound to observe both the limitations on power and procedure as is set out in the Supreme law, the Constitution.
Otherwise, in my legal opinion, the dream on entrenching the constitution would be far-fetched.

REFERENCES * The Constitution of Kenya, 2010 * http://www.constitutionnet.org/what-entrenchment * http//www.academia.org