Sixteen years after Kenya promulgated the Constitution of 2010, the most interesting question at this year’s Katiba Day was no longer whether the document had changed the country. It plainly has.
The harder question – the one former Attorney General Githu Muigai put on the table at KICC – is whether the political class has spent sixteen years quietly working around that document, in ways the text was never amended to permit.
Githu’s intervention had three parts, and each one deserves to sit at the centre of the Katiba at 16 conversation rather than in its margins. The most striking claim was also the most direct challenge to how Kenya is currently governed.
The former AG argued that Kenya’s real, working model of politics is power-sharing – whether Kenyans call it nusu mkate, the handshake, or, by clear implication, the broad-based government now running alongside Kenya Kwanza.
“We work best as a country, believe it or not, whether you call it nusu mkate or you call it handshake, it is the model that works in our constitutional formation,” he said. “And we need to confront that reality and write it into the constitution – which is exactly what we did in Bomas. Then the politicians came in… and removed it.”
The Bomas Draft formed the skeleton for the document that was renegotiated in Naivasha and eventually promulgated in 2010. It contained a genuine power-sharing architecture and mechanisms built to hold a fractious political class together.
Githu argues that Kenya never actually stopped needing that architecture – it just started improvising it instead. Nusu mkate in 2008. The handshake in 2018. And now, since 2024, the broad-based government arrangement that brought senior ODM figures – John Mbadi, Opiyo Wandayi, Hassan Joho, Wycliffe Oparanya – into Ruto’s Cabinet outside any formally recognised coalition or merger.
In a dissenting judgment delivered this year, Justice Jairus Ngaah – one of the three judges who later ruled on the Cabinet’s gender composition – found that the broad-based government “lacks constitutional basis,” arguing that folding opposition figures into Cabinet outside a constitutionally recognised coalition or merger blurs the line between government and opposition and weakens the checks and balances the Constitution was built to protect.
The majority on that bench disagreed and upheld the appointments. But the dissent exists, on the record, making exactly the argument Muigai is implicitly answering: Kenya is currently governing itself through an arrangement the Constitution’s text does not clearly authorise.
Githu’s prescription is not to abandon the practice. It’s the opposite – stop pretending it is ad hoc, and write it in. Whether or not Kenya agrees with him, he has correctly identified the live fault line: a governing model operating in the gap between what works politically and what the text permits legally.
Bloated Parliament
Githu’s second target was closer to the ground and easier to verify against arithmetic and returned to it three times in a few minutes for emphasis. “The house is too large. We need to look at it.” Parliament – a 349-member National Assembly and a 67-member Senate – runs to 416 legislators, whose salary bill runs into billions of shillings a year.
He added, half in jest, that he did not know how the Treasury manages to pay those wages. The point is not simply fiscal irritation but connects directly to the Article 43 promise Ruto’s own speech leaned on: every shilling committed to sustaining an oversized Parliament is a shilling not available for the “reasonable, deliberate, concrete and measurable steps” the Constitution requires toward health, housing, food, water, social security and education.
Kenya built a large, deliberately decentralised state after 2010 – 47 counties on top of an extensive national government, plus commissions and independent offices. That was the price of the settlement. Whether Kenya can still afford the price, sixteen years on, is a fair question Githu is entitled to ask.
Githu’s third point was on the Senate, which he said was designed to provide “elderly supervision” over the National Assembly – a check built specifically around devolution and county interests.
“That’s how we wanted it. That’s how we structured it,” he said. “The politicians removed that, and now the Senate literally spends all its time looking for work to do. And the people who have suffered are the governors, as a result.”
That is a sharper and more specific charge than institutional drift in the abstract. It names governors – and, by extension, counties – as the casualties of a Senate that has lost its footing. It also lands directly on ground the Senate is constitutionally supposed to occupy: county financial oversight.
Reporting timed to this year’s anniversary has put Sh87 billion in unaccounted-for county funds at the centre of an argument that weak financial controls are undermining devolution.
The Gender Question
Githu also addressed the two-thirds gender question directly, and his framing is worth setting out precisely because it complicates rather than reinforces the accountability story running elsewhere in this issue. He disclosed that he and Aden Duale had once drafted a bill that “almost got us over the finishing line” before it was lost.
His argument now is that Kenya may be thinking about the problem the wrong way: “When we talk in absolute numbers, we lose the meaning. The meaning is that we don’t want equality… we want equity. And we need ways of reaching equity. There are many tools in the toolbox that we can have.”
That is a genuine, longstanding position of his – not commentary on Ruto’s current 120-day compliance deadline under the July High Court ruling, and not an endorsement of the President’s decision to treat that deadline as “a work in progress.”
It is, instead, a separate argument about whether numeric quotas are even the right instrument for the constitutional value they’re meant to serve.
Both things can be true at once: Ruto’s non-committal answer at KICC is still a live test of whether a binding court order gets honoured, and Githu’s equity-over-arithmetic argument is still a serious, distinct critique of how Article 27(8) was operationalised in the first place.
Gains Are Real, But Gaps Matter
None of this should obscure what the Constitution has accomplished. The Bill of Rights has transformed how citizens challenge the State. The Judiciary is a far more consequential actor in public life than it was before 2010. Devolution has genuinely shifted power and resources toward counties, even if the Senate has not kept faithful watch over how that money moves.
Ruto’s own framing at KICC leaned on that record, calling for “a day of national accounting” and arguing implementation should ultimately be judged by whether citizens’ daily experience matches the Constitution’s promises. Kindiki, addressing the same room, called the Constitution “the software of the nation” while asking, more cautiously than the President, how faithfully Kenya has actually lived up to the values it enshrines.
Githu went further than either of them noting, in his opening remarks, that Ruto himself had “kicked off” a national conversation about where Kenya goes next, “not only about where do we go as an economy, but where do we go as a society,” and that Katiba Day should be the moment to ask honestly whether the document “is still serving us correctly.”
His own answer was blunt: “I think the answer is no. It has its own internal inconsistencies that do not allow our full energies to flow.”
Constitutionalism is not measured by how many institutions a country builds. It’s measured by whether those institutions do what they were built to do and whether the political arrangements actually running the country have any textual home at all.
The 2027 Play
None of this reflection is happening in a vacuum. With the next General Election now under a year away, opposition figures have increasingly folded “constitutional fidelity” into campaign positioning rather than civic commemoration.
Wiper leader Kalonzo Musyoka has for months accused the administration of violating both the constitution and its own manifesto commitments, language that will only sharpen as August 2027 nears.
His commemoration statement was short but aimed at Ruto’s administration. “On 27th August 2010, we buried the ghosts of an imperial presidency and gave ourselves a Constitution born of hope. Sixteen years later, the fight to protect it continues,” he wrote on his social media pages.
Martha Karua, one of the opposition luminaries, went more nostalgic, saying that Kenyans fought for a Constitution that would change the relationship between the people and the State, one that would protect our rights, make power accountable, and ensure that opportunity is not determined by where you are born.
“And sixteen years later, I still believe in that Kenya. It is why I am offering myself for the presidency: to protect the promise we made, to carry forward the work we began, and to make sure that the Kenya we envisioned is finally felt in the lives of all its people,” Karua posted on her social media accounts.
That convergence, a constitutional anniversary arriving inside an election countdown, is precisely why Ruto’s framing matters beyond one speech. “National accounting” is a useful phrase.
Whether it survives contact with an actual audit – of county books, of Cabinet composition, of stalled investigations – is the more useful question, and it is one Katiba Day itself does not answer. It only asks it, again, a year closer to the ballot that will.
