The first thing we do, let’s kill all the lawyers

The Constitution of Kenya was written by lawyers. And it shows. It should have been written by ordinary Kenyans first, and then the lawyers could thereafter have had their way with the legal weaselling...reasoning. The Fourth Schedule to the Constitution deals with the distribution of functions between her national government and county governments. Paragraph 1 of Part 1 states that the national government shall perform functions relating to foreign affairs, foreign policy and international trade.

The Fourth Schedule contains a list with 48 items, 34 functions of the national government and 14 functions of county governments. The lawyers who compiled the list were not thinking of the opening words of the Preamble of the Constitution - We, the people of Kenya. It is why functions relating to how humans live and work are treated as afterthoughts - while things that inevitably lead to the exercise of governmental powers take precedence.

You can see this in the way the Africa Forward Summit (Africa-France Partnerships for Innovation and Growth) held on the 11th and 12 May, 2026, was conceived, promoted, and held, and how the decisions by the international worthies were made. Some commentators have thoughtfully explained the implications of the whole kit and caboodle, especially in light of the violent fracturing of Françafrique in West Africa and the weight of colonial history that the Summit attempted to slough off its shoulders. If the lawyers had resisted the powerful instinct to lawyer-ise the Constitution, we may not be having such a difficult time in explaining why neo-Françafrique poses such fraught questions for us.

Many well-meaning lawyers, such as the indefatigable Dr. Willy Mutunga, first Chief Justice of the Supreme Court of Kenya, tried their best to place We, the people of Kenya, at the heart of the Constitution. They did not succeed. They did not even come close to succeeding. because their fellow-lawyers had laid such terrible constitutional traps for them to evade.

Take the question of who is and who isn't eligible to stand in a Kenyan election. Kenyans are staring in horror at the lawyerly protection conferred on all sorts of shady men and women. The words all possibility of appeal or review of the relevant sentence or decision has been exhausted found in Article 99(3) and Article 193(3) are a warm security blanket that lawyers sitting in the constitutional court will wrap around the shoulders of the put-upon politicians with dodgy criminal records seeking elected office. If We, the people of Kenya, had been asked to decide who should or shouldn't be eligible to stand in a Kenyan election, no way would they have added that caveat about appeals and reviews. No way, José! But we were not and at least two alleged child sex abusers (that we know of) sit in the national legislature.

One of the most egregious signs that the Constitution was written by lawyers is the Preamble. Kenyan lawyers, even the ones who have had the opportunity to attend the very best schools, universities and colleges the world has to offer, are notorious for copying other lawyers' work. The Preamble is a pale imitation of the United States Declaration of Independence, the Indian Constitution's Preamble, and the South African Constitution's Preamble, garnished, garishly, by a smattering of Kenyan-style constitutional lawyering. It is a a dog's breakfast, redeemed only by the fact that it is mercifully short. If there were any lawyers that said, "Let's not," they were either not persuasive, or they were easily ignored. I find the allusions to an Almighty God of all creation particularly crass because if we truly believed in the rights of ALL Kenyans to think and believe as they wish, We, the people, would not be declaring as a fact that [a] there is a God, [b] that the God is "almighty" and [c] the God created "all". We, the people, I would like to think, would have asked, "What about my fellow Kenyan who does not believe gods exist?"

In another twenty to thirty years, Kenyans will replace this Constitution. I hope that they will have learnt hard lessons: keep the lawyers away from the process. Better yet, in the words of Mr. Shakespeare as written in Henry VI, Part 2 - Act 4, scene 2, The first thing we do, let’s kill all the lawyers!