Former Chief Justice David Maraga has warned that Kenya’s Constitution is “under siege”, accusing state institutions of weakening constitutional protections and failing to hold those in power to account as the country heads towards the 2027 General Election.
Speaking in a statement to mark Katiba Day on Thursday, August 27, Maraga said the Constitution was the result of years of struggle and sacrifice by Kenyans and should not be taken for granted.
“Today, that Constitution is under siege from incessant violations that must trouble every Kenyan who lived through the struggle,” he said.
Maraga, who is also the United Green Movement (UGM) party co-leader and its 2027 presidential flag bearer, said the experience of the past 16 years had shown that citizens must take an active role in protecting the Constitution.
“The lesson from the past 16 years is unambiguous; we must stand defend it. We must be vigilant because those who want to sabotage it are working overtime,” he said.
He accused the government of weakening protections contained in the Bill of Rights and failing to properly uphold provisions on public participation.
Maraga said these rights were being affected by what he described as “cosmetic implementation and repressive actions”.
He claimed that dissent was increasingly being treated as a crime, while court orders were being disregarded and public participation reduced to “a formality to be endured rather than a constitutional obligation to be honoured”.
The former Chief Justice also criticised Parliament over its role in checking the Executive, saying lawmakers had failed to effectively carry out their oversight duties.
“An institution meant to scrutinize, question, and where necessary restrain the Executive has regressed from oversight to acquiescence,” Maraga said.
He said the failure by Parliament and other institutions to properly check executive power had created room for what he described as executive overreach and “state capture”.
According to Maraga, state capture occurs when public institutions are made to serve narrow interests instead of the sovereign people.
He said the failure of institutions to hold those in power accountable had placed a greater responsibility on citizens, civil society and the Judiciary to protect constitutionalism.
“Constitutionalism is not self-executing,” he said.
Maraga said Kenyans must therefore remain alert and actively defend the rights and freedoms guaranteed by the Constitution.
He linked the need to protect the Constitution directly to the 2027 General Election, saying the vote would be about more than choosing political leaders.
“This is why the 2027 elections will be more than a contest between candidates,” he said.
Maraga described the 2027 election as “a referendum on the kind of country we desire”, contrasting constitutional governance with what he called “relics of resurgent past despotism dressed in the form of progress”.
He urged Kenyans to approach the next election with the same determination that led to the adoption of the 2010 Constitution.
“Katiba Day is a reminder of what was won. It must also be a warning about what could still be lost,” he said.
The warning comes as Kenya marks 16 years since the promulgation of the current Constitution, which replaced the independence Constitution.
Kenyans approved the 2010 Constitution in a referendum held on August 4, 2010, with 68.55 per cent of valid votes supporting the proposed law.
President Mwai Kibaki later promulgated the Constitution on August 27, 2010, ushering in a new constitutional order.
The independence Constitution had come into force in 1963 and underwent several amendments over the years.
One of the major changes came in 1982 when Section 2A was inserted, making Kenya a de jure one-party state under KANU.
The provision was repealed in 1991 following sustained pressure for political reforms, paving the way for the return of multiparty politics.
The push for a new constitutional order continued through the 1990s and 2000s, with several reform efforts eventually leading to the Constitution review process that followed the 2007-08 post-election crisis.
The 2010 Constitution introduced major changes to Kenya’s system of government, including devolved county governments, a bicameral Parliament, an expanded Bill of Rights and stronger checks and balances between state institutions.
Maraga's warning on Katiba Day places renewed focus on whether the gains of the 2010 Constitution are being fully protected and whether Kenyans will use the 2027 election to shape the country’s constitutional future.