Asserting the Legitimacy of Judicial Power in the Constitution of Kenya: Can Judicial Review of National Security Be Justified?

Abstract

The currency of executive pleas in cases calling for limitation of rights in matters of national security is often grounded on its functional competence and being elective as opposed to an appointive Judiciary. This concern is not academic as illustrated by the narrative propagated by President Kenyatta on the outcome of the 2017 presidential petition of an unelected minority deciding for the majority.i This paper addresses itself to the question whether judicial review is a legitimate and desirable and effective way to check and balance the exercise of executive power in matters of national security.