Transformative Constitutionalism: Contextualizing Human Rights Application Under the Constitution of Kenya 2010

Abstract

The enactment of the Constitution of Kenya 2010 heralded a new era in the Kenyan legal system particularly in the field of human rights which had experienced vast challenges in the past under the old Constitutional orders. Under the pre-2010 Constitutional order the provisions in the Bill of Rights of the Constitution were traditionally viewed to apply as against the State and not private entities. The Constitution of Kenya 2010 has been seen to have transformed the manner in which the provisions in the Bill of Rights are interpreted and the Courts have been seen to apply these provisions both against the State and private entities but confusion has arisen on what is the appropriate manner of interpretation.

This article looks at the manner in which the provisions in the Bill of Rights has been applied and it does this through a comparison of the jurisprudence emanating before the enactment of the Constitution of Kenya 2010 and that arising after the enactment of the Constitution.