LESSON TWO SOURCES OF LAW.doc

A written constitution is generally considered to be

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A written constitution is generally considered to be rigid i.e. can only be changed in some manner e.g. by requiring a specified majority. The Kenyan Constitution is written, though it enjoys harmony of rigidity and flexibility, a feature, which enables it keep abreast with changes in the dynamic Kenyan environment. These changes are done through constitutional amendments.
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The Kenyan constitution consists of 128 sections, originally enacted on 12 th December 1963 and amended on 12 th December 1964 so as to establish a republic with the President as the Head of state. Section 3 of it establishes its unchallengeable position over any other written or unwritten law i.e. the supremacy of the constitution. The constitution of Kenya established: - The Executive; Section 4 – 29, - The Legislature; Section 30 – 59, - The Judiciary; Section 60 – 69 and; - The fundamental rights and freedoms of individuals ; Section 70 – 86. The constitution contains many more provisions concerning other issues in various other chapters. Supremacy of the constitution. In countries where there exists a written constitution, it invariably enjoys a pre-eminent position within the legal order. The constitution is regarded as the law within which the frame-work of detailed rules and practice are to be laid out. The constitution takes precedence and supremacy over all other laws. The theory behind supremacy of the constitution is that it embodies a contract between the government and the governed. The constitution must therefore not be altered in the same manner as ordinary legislation. The constitution is or is supposed to be the product of the exercise of the constituent power inherent in the people and it is from it that all legislative Acts derive their authority. In the context of Kenya, the concept of the supremacy of the constitution is captured in Section 3 of the constitution, which states as follows; ‘This Constitution is the Constitution of the Republic of Kenya and shall have the force of law throughout Kenya and subject to section 47 of the Constitution, if any other law is inconsistent with this Constitution, this Constitution shall prevail and the other law shall to the extent of the inconsistency be void’. The said Section 47 is concerned with the procedure of amendment and provides as follows: ‘A bill for an Act of parliament to alter this constitution shall not be passed by the national Assembly unless it has been supported in the 2 nd and the 3 rd reading by votes of 65% of all members of the assembly (Excluding the Ex-officio members) In the case of Njoya Vs. Attorney General & Others, Pastor Njoya challenged Section 27 and 28 of the C.K.R.C Act Cap 3(a). The High court struck out certain provisions of the Act as unconstitutional and held that the parliament had no right to re-write in toto the constitution as Section 47 conferred on it only limited power of amendment and that the only competent authority to declare a new constitution is the people through a referendum plebiscite.
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