Who will Guard the Guardians? The Betrayal of Kenya’s Constitutional Ideals
Recent deaths in custody and street protests raise urgent questions about accountability and the erosion of constitutional safeguards. This Editor’s Note reflects on institutional failure and the duty to defend the rights the Constitution promises.
Author : CS. Kevin Wakwaya
- [email protected]
- Rachier & Amollo LLP, Mayfair Center 5th Floor
Who will Guard the Guardians? The Betrayal of Kenya’s Constitutional Ideals
Article Overview
This Editor’s Note reflects on Kenya’s recurring cycle of civic unrest and alleged state violence, drawing parallels between the 2024 Finance Bill protests and renewed demonstrations sparked by the death of Albert Ojwang while in police custody. It interrogates whether constitutional rights are being treated as enforceable protections or “paper rights,” and critiques the persistence of impunity even where courts have issued clear guidance.
Using Kenya’s constitutional framework and recent case law on expression and criminal liability, the note underscores that even where speech is alleged to be unlawful, the State must still uphold non-derogable rights, due process, and humane treatment. It concludes with a call for accountability, institutional integrity, and continuous documentation and public insistence on constitutionalism.
“Nothing is more powerful in history than the record.”
Key takeaways
- Context and urgency: highlights the June protest cycle, referencing deaths, injuries, and alleged enforced disappearances or killings following arrests during the 2024 protests.
- Police custody and accountability: anchors the 2025 protests on the death of Albert Ojwang while in police custody and the conflicting public accounts surrounding it.
- Freedom of expression and criminal liability: notes the shift from the striking out of criminal defamation to the continued criminalisation of certain online speech through the Computer Misuse and Cybercrimes Act, as upheld in later litigation.
- Non-derogable rights and due process: stresses that even accused persons retain constitutional protections including dignity, fair trial rights, and freedom from torture or cruel, inhuman, or degrading treatment.
- Institutional failure theme: argues that commissions and constitutional offices meant to protect the public are often captured by politics, weakened by corruption, or applied selectively.
- Call to action: urges sustained public pressure for accountability, including keeping records and resisting the gradual erosion of liberty “by parts.”
About this piece
This is a commentary-style Editor’s Note focused on constitutionalism, civic space, accountability of state institutions, and the practical enforcement of rights during periods of political tension and public protest.