Karl Klare defines transformative constitutionalism as “a long term project of constitutional enactment, interpretation and enforcement committed to transforming a county’s political and social institutions and power relationships in a democratic, participatory and egalitarian direction”. According to Karl Klare, the motive for transformative constitutionalism is the need to change the social, economic and political structures.
Albertyn in his journal is of the opinion that such a society based on substantive equality can only be achieved through the radical change of the state and the society.Substantive equality is said to be the primary objective of a transformative constitution. Justice Langa states that “the ultimate goal of social transformation is to reach a level of substantive equality, where everyone is able to lead a life consistent with human dignity”.
The Transformative Aspirations in the 2010 Constitution of Kenya
Substantive Equality and Justice
The 2010 Constitution of Kenya is built on social equality and justice as specified out in the various provisions of the Constitution. The Preamble recognizes the aspirations of the Kenyan people for a government based on the essential values of social justice among others. Article 10(2) on the national values and principles of governance also list social justice and equality as some of the values of good governance. Article 19(2) provides that the purpose of recognizing and protecting human rights and fundamental freedoms is not for the preservation of the dignity of individuals and communities but also for the promotion of social justice in order to realize the potential of all human beings.
Under Article 27 the Constitution promotes equality and non discrimination of all persons. This provision also envisage affirmative action seeking to remedy past discrimination of individuals, groups and communities that have been suffering discrimination in the past that negatively affected them. However, the provision does not list sexual orientation as one of the ground of non discrimination.
Interestingly, the court in Eric Gitari v Non Governmental Organizations Coordination Board & 4 others, where the petitioner sought to register an NGO named Gay and Lesbian Human Rights Council, Gay and Lesbian Human Rights Observancy and Gay and Lesbian Human Rights Organization and the Board advised that no NGO bearing such names could be registered; the petitioner refused to change the name of the proposed NGO and did not hear from the NGO Board prompting to the lodging of the petitioner.
The court in the Eric Gitari Case found that sections 162, 163 and 165 of the Penal Code which criminalized homosexuality unconstitutional and inconsistent with the 2010 Constitution as they limited the right to freedom of association which was their right no matter how we disliked their existence. To this regard, the South African case of National Coalition for Gay and Lesbian Equality v Minister of Justice can be used to further illustrate substantive equality. The court stated that the acknowledgement and acceptance of difference is particularly important in South Africa where group membership had been basis of express advantage and disadvantage.
In emphasizing substantive equality, the court in John Mwai & 3 others v Kenya National Examination Council & 2 others, stated that the provision of Article 43 of the Constitution aimed at advancing the socio-economic needs of the people of Kenya including the poor so as to uplift their human dignity. The court also said that the Constitutions’ transformative aim was one that was based on equal and equitable distribution of resources.
Social economic rights were for long considered as secondary rights. However, with the new Constitution dispensation these rights were put at par with other rights such as political and civil rights. The inclusion of this group of rights in the Constitution was transformed Kenya from a society based on socio-economic deprivation to one that was based on equal distribution of resources.
The State has a positive duty to avail socio-economic rights to the Kenyan people. In Mitubell Welfare Society v Attorney General & 2 others, the court stated that Article 21 and Article 43 of the Constitution required a progressive realization of socio-economic rights and the State must take steps that aimed at the realization of these rights.
Article 4 of the 2010 Constitution establishes a Sovereign Republic based on multi party democracy and a State that is founded under the national values and principles of governance under Article 10 of the Constitution. Chapter Seven of the Constitution provides for the representation of the people of Kenya; a democratic exercise that is enhanced by devolution which gives the people the power to self govern themselves through a participatory decision making process.
Chapter Eleven of the Constitution goes further and lists the objectives of devolution as provided for under Article 174. These objectives include the recognition of the right of communities to manage their own affairs in order to further their own development and the protection of rights of the vulnerable and marginalized communities. Devolution is also very critical as it acts to enhance checks and balances in the exercise of public power; these objectives aim at promoting substantive separation of powers.
Vertical and Horizontal Application of the Constitution
Article 2 of the Constitution provides that the Constitution is the supreme law of the land and the Constitution binds all State organs at both levels of government. The Constitution therefore binds both natural persons and legal persons and not only State organs. The State is therefore obligated to promote constitutional protection to individuals in the private sector which acts as a balance for the power that non state actors have acquired.
The courts in Kenya have been very clear that human rights also apply horizontally. In Mwangi Stephen Mureithi v Daniel Toroitich Arap Moi, Justice Gacheche stated that fundamental rights were applicable both vertically and horizontally so as to protect individual citizens from non state actors who possessed power from committing constitutional breaches against them. In Isaac Ngugi v Nairobi Hospital & 3 others, the court affirmed that the Bill of Rights applied both vertically and horizontally but this depended on the nature of the right and fundamental freedom and circumstances of the case.
The Role of the Courts in Implementing the Transformative Constitution
The above transformative aspirations of our Constitution can only be achieved through the active role of the Courts as they are the guardians of the Constitution under Articles 23, 159(2) (e),165 (2) (b) and 169 (2) (d). Therefore transformative adjudication is crucial in fostering the transformation agenda more so the transformative adjudication on the interpretation of the Constitution.
Courts must implement transformative constitutionalism in order for them to guarantee the supremacy of the Constitution. In Re Interim Independent Election Commission, the Supreme Court stated that “the rules of Constitutional interpretation do not favor formalistic or positivistic approaches as per the provisions of Articles 20(4) and 259 (1)”. The court further pronounced that the Constitution had taken into consideration non legal aspects which had to be taken into account in exercising jurisdiction.
Further, it was appreciated in the Re Interim Independent Election Commission case that the Constitution did not only posses one of the most modern Bill of Rights that envisioned a human rights based and social justice oriented State and society; but also its various provisions such as Article 10, Chapter Six and the Preambular provisions reflected the historical, economic, cultural and political realities and aspirations of Kenya that were very critical in building a strong patriotic and indigenous jurisprudence for Kenya. The court also appreciated that the source of its authority was the people of Kenya under Article 159(1) of the Constitution and as such this authority had to be reflected in the decisions made by the courts.
The Re Interim Independent Election Commission case went ahead to mention that the interpretation of the Constitution was the combination of rules on one hand, with values and principles on the other. The court declared that principles and policies were not to be substituted with each other.
The Supreme Court in the cases In the Matter of the Principle of Gender Representation in the National Assembly and the Senate and Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others, Chief Justice Mutunga stated that the Supreme Court had a clear obligation to provide firm and recognizable reference points that the lower courts and other institutions could rely on when called upon to interpret the Constitution.
 Karl Klare, ‘ Legal Culture and Transformative Constitutionalism’ (1998)14 South African Journal on Human Rights 146 151-156
 Albertyn C. & Goldblatt B, ‘ Facing the Challenge of Transformation: difficulties in the development of an indigenous jurisprudence of equality’ (1998)14 South African Journal of Human Rights 248-249
 P. Langa, ‘ Transformative Constitutionalism’ lecture delivered at Stellenbosch University 9 October 2006 accessed http://law.sun.ac.za/portal/law/index.english/news/2006/pius%20Langa%020speach.pdf
 Eric Gitari v Non Governmental Organizations Coordination Board & 4 others, Petition No 440 / 2013
 National Coalition for Gay and Lesbian Equality v Minister of Justice, (1999) (1) S.A 6(CC)
 John Kabui Mwai & 3 others v Kenya Examination Council & 2 others, (2011) KLR
 Mitubell Welfare Society v Attorney General & 2 others, Petition No 164 / 2011
 Mwangi Stephen Mureithi v Daniel Toroitich Arap Moi, (2011) KLR
 Isaac Ngugi v Nairobi Hospital & 3 others, (2013) KLR
 Re Interim Independent Election Commission, (2011) KLR
 Above n12
 In the Matter of the Principle of Gender Representation in the National Assembly and the Senate, (2012)
 Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others, (2012)