Structural Sources of Constitutional Conflicts: A Conflict Analysis of Constitution-making in Kenya, 1997-2005

Abstract

The study investigates the structural sources of constitutional conflicts in Kenyan society by examining the process and content debates in the constitutional review process that took place between 1997 and 2005. The study is based on the premise that a country's constitution is a fundamental pillar on which the society is structured. The study applies the structural violence theoretical framework to provide a deeper insight into Kenya's constitutional debates. It develops the hypothesis that an anomalous constitution engenders structural violence in society. Both primary and secondary sources of data were used to carry out the study. Non-probability stratified sampling is used in the study. This study argues that the existing Kenya constitution is a fundamental source of structural violence in Kenya. Constitutional conflicts arise because the constitution does not address many of the concerns of its citizens such as equitable distribution of resources and the protection of individual and minority rights. The study also contends that the process of constitution-making and the content of the constitution are inextricably linked. A defective process leads to an anomalous constitution. The study also finds that attempts to address constitutional conflicts in Kenya have often been settlement rather than resolution-oriented thereby rendering them less effective. Constitution-making is eminently a political process and both the Kenyan political landscape and the broader political context of African states need to be considered to adequately appreciate Kenya's constitutional conflicts.