Authored By: Latta Hussein Abdalla
Latta Hussein Abdalla
Abstract
This article examines the tension between constitutional rights and authoritarian practices in Kenya, focusing on state suppression of dissent, extrajudicial killings, and media freedom restrictions. Through both analytical and doctrinal analysis of Kenya’s 2010 Constitution, relevant case law, and international human rights instruments, this research argues that despite robust legal safeguards, persistent implementation gaps enable ongoing rights violations. The article analyzes the transformative potential of judicial interventions in cases such as Royal Media Services Ltd & 2 Others v Attorney General & 8 Others [2018] eKLR[1], while acknowledging institutional limitations in curbing executive overreach. It also explores comparative perspectives from Tanzania, Uganda, Nigeria, and South Africa, where similar repressive tactics manifest in different legal contexts. It further explores emerging trends in digital resistance and Generation Z activism as countervailing forces to state repression. The study reveals that legal frameworks alone are insufficient without political will and institutional reform. The article concludes that authoritarianism is sustained not by a lack of legal protections but by the manipulation of existing laws, weak accountability, and political interference. Recommendations include strengthening accountability mechanisms, judicial independence, legislative amendments to align security laws with constitutional values and supporting digital civic movements especially Gen Z activism as critical tools for defending democratic space. . This research contributes to understanding how progressive constitutions confront authoritarian legacies in democratic transitions.
Introduction
The global decline of democratic norms and the rise of authoritarian practices present a critical challenge to human rights protection in the 21st century. According to Freedom House, 2024 marked the eighteenth consecutive year of declining democratic freedoms worldwide, with 22% of the world’s population experiencing deteriorated rights protections[2].The Republic of Kenya stands at a constitutional crossroads. The promulgation of the Constitution of Kenya, 2010[3], was hailed as a transformative moment, a “second birth” for the nation, designed to dismantle the architecture of a post-colonial authoritarian state and replace it with a culture of constitutionalism, human rights, and accountability. This progressive document, particularly its robust Bill of Rights, was a direct response to decades of systemic abuse, including the weaponization of the state security apparatus, suppression of political dissent, and a flagrant disregard for human dignity.
Despite this elaborate legal framework, a disturbing dissonance persists between constitutional promise and state practice. The contemporary Kenyan state exhibits a worrying regression towards the very authoritarian tendencies the 2010 Constitution sought to eradicate. This regression is characterized by a claw back on fundamental freedoms, manifesting in periodic media shutdowns, the criminalization of online expression, brutal suppression of protests, and an alarming prevalence of extrajudicial killings and enforced disappearances[4]. These actions, often justified under the amorphous guise of national security, directly assault the core tenets of the rule of law. The theoretical framework of authoritarian legalism, characterized by the strategic use of legal systems to legitimize repression, provides a useful lens for analyzing the Kenyan context[5] . This approach, evident in numerous jurisdictions worldwide, demonstrates how states employ legal facades to undermine rights while maintaining appearances of constitutional compliance.
This research adopts a qualitative, analytical and doctrinal legal methodology. It draws upon a comprehensive review of primary sources, including the Constitution of Kenya 2010, relevant statutes, and binding international treaties such as the International Covenant on Civil and Political Rights (ICCPR) and the African Charter on Human and Peoples’ Rights (ACHPR). The analysis is critically informed by an examination of Kenyan and comparative jurisprudence, scholarly articles, and reports from credible human rights organizations and UN special mechanisms. The objective is to diagnose the legal and structural failures that enable state impunity and to evaluate the efficacy of existing and emerging mechanisms for accountability.
Background and Contextual Framework
Theoretical Foundations of Authoritarian Legal Systems
Authoritarianism in law represents a political philosophy that prioritizes state authority, order, and obedience over individual freedoms and democratic institutions[6] . Such systems typically feature a concentration of power in single entities or ruling groups, often accompanied by suppression of dissent and disregard for human rights. The theoretical underpinnings of authoritarian legal thought draw from various philosophical traditions, including Hobbesian realism, which advocates strong central authority to prevent chaos, and legal positivism, which separates law from morality and enables regimes to justify repressive measures through formal legality[7] .
Contemporary authoritarian regimes increasingly employ sophisticated strategies that maintain veneers of constitutional compliance while substantially undermining rights. These include the strategic adoption of democratic and human rights language to legitimize repressive actions a phenomenon noted in joint statements by China and Russia claiming democratic legitimacy while rejecting external rights monitoring[8] . This conceptual manipulation represents a significant challenge for international human rights enforcement, as it blurs traditional distinctions between democratic and authoritarian governance.
The operational mechanisms of modern authoritarianism include surveillance, censorship, propaganda, and coercive repression[9] . These tools frequently target journalists, activists, and political opponents, creating environments where rights exist primarily on paper. The global decline in press freedom, documented in the 2025 World Press Freedom Index which shows a deteriorating global average score of 55 out of 100, reflects this trend toward information control[10]. Particularly alarming is the normalization of extrajudicial violence, which United Nations special rapporteurs have documented across numerous countries, often accompanied by state denial and impunity for perpetrators .
Main Legal Analysis
The Constitutional and International Legal Framework for Human Rights
Kenya’s 2010 Constitution establishes one of Africa’s most comprehensive rights protection frameworks, creating both substantive entitlements and enforcement mechanisms. The Bill of Rights in Chapter Four embodies an transformative approach to constitutionalism, seeking to redress historical injustices and power imbalances. The implementation legislation required to give full effect to these rights, however, has been characterized by delays, contradictions, and occasional deliberate undermining of constitutional values.
The Kenyan Bill of Rights: A Bulwark Against Tyranny
Several provisions are central to the conflict between state power and civic freedom:
Article 26 (Right to Life): This article guarantees that no person shall be deprived of life intentionally, save for the execution of a court sentence. This is the foundational right upon which all others rest, and it is directly impugned by the practice of extrajudicial killings.
Article 29 (Freedom and Security of the Person): This provision explicitly protects against torture, cruel, inhuman, or degrading treatment, and arbitrary detention. It forms the primary legal basis for challenging enforced disappearances and police brutality.
Article 33 (Freedom of Expression) & Article 34 (Freedom of the Media): These cognate rights form the bedrock of a democratic society. Article 33 guarantees the freedom to seek, receive, or impart information or ideas, though it excludes incitement to violence or hate speech. Article 34 is notably progressive, guaranteeing the freedom and independence of electronic, print, and all other types of media, and explicitly stating that the state “shall not… interfere with any person engaged in broadcasting, the production or circulation of any publication…”
Article 37 (Right to Assembly, Demonstration, and Association): This article guarantees the right to peacefully and unarmed assemble, demonstrate, and picket, providing the constitutional anchor for public dissent and protest[11].
International and Regional Obligations
Kenya is a state party to the foundational instruments of international human rights law, which are incorporated into Kenyan domestic law via Article 2(5) and 2(6) of the Constitution. The Universal Declaration of Human Rights (UDHR)[12] sets the common standard. More pertinently, the ICCPR, in Article 19, protects freedom of expression, and in Article 6, protects the right to life[13].
Regionally, the African Charter on Human and Peoples’ Rights (ACHPR) reinforces these protections. Article 4 (Right to Life), Article 5 (Right to Dignity), Article 9 (Right to Receive Information and Express Opinions), and Article 11 (Right to Assemble) create binding obligations[14]. The African Commission on Human and Peoples’ Rights (ACHPR) has, in its General Comment No. 3 on Article 4, explicitly stated that states have an obligation to investigate and punish all extrajudicial, summary, or arbitrary killings.[15]
Judicial Interpretation and State Impunity: A Critical Analysis
The judiciary is constitutionally mandated to be the final arbiter and guardian of the Bill of Rights. However, its record in confronting executive overreach has been characterized by both moments of profound courage and instances of disappointing deference.
The Nexus of Media Freedom and Authoritarianism: The Royal Media Services Case
The locus classicus for analyzing modern state suppression of the media in Kenya is Royal Media Services Ltd & 2 Others v Attorney General & 8 Others [2018] eKLR[16].
Factual Background: In January 2018, following the controversial “swearing-in” of opposition leader Raila Odinga, the Kenyan government, through the Communications Authority of Kenya (CAK), ordered the immediate shutdown of several major, independent television stations (NTV, KTN, Citizen TV, and Inooro TV) that were broadcasting the event. This shutdown lasted for several days, despite multiple court orders directing the government to restore the broadcasts.
The Court’s Reasoning and Judgment: The High Court (sitting as a constitutional court) delivered a powerful judgment reaffirming the primacy of the Constitution. The court held that the government’s actions were a flagrant and “gross” violation of Article 34.
Key findings included:
- Violation of Media Freedom (Art. 34)[17]: The court found the shutdown was a “draconian” act of censorship, patently unconstitutional, and a direct interference with media independence. The state’s justification of “national security” was found to be unsubstantiated and did not meet the stringent limitation test under Article 24 of the Constitution.
- Violation of Access to Information (Art. 35)[18]: By shutting down the media, the state simultaneously violated the public’s right to access information.
- Contempt for the Rule of Law: Perhaps most critically, the court decried the state’s “recalcitrant” behavior in disobeying multiple court orders to restore transmission. It noted that such defiance “invites anarchy” and transforms the constitutional order into a “dead letter.”
In Coalition for Reform and Democracy (CORD) & 2 Others v Inspector General of Police & 4 Others [2015] eKLR,[19] the court addressed the right to protest under Article 37. It invalidated sections of the Public Order Act that gave the police wide, discretionary powers to prohibit or disperse assemblies, holding that the state’s role is to facilitate the enjoyment of Article 37, not to suppress it. Yet, the reality on the ground, particularly during recent anti-government protests, involves the systematic use of teargas, water cannons, and live ammunition, resulting in death and injury a de facto nullification of the court’s holding.
This suppression has migrated online. In Bloggers Association of Kenya (BAKE) v Attorney General [2020] eKLR[20], the High Court struck down 26 provisions of the newly enacted Computer Misuse and Cybercrimes Act (CMCA), 2018. The court found that provisions criminalizing “false,” “misleading,” or “fictitious” information (Sections 22 and 23) were unconstitutionally vague and a disproportionate limitation on Article 33 (Freedom of Expression). These sections, the court reasoned, would have a chilling effect and were tools for “legislative overkill,” designed to silence bloggers and online critics. This case highlights the state’s attempt to codify digital suppression, “to achieve by law what it could not achieve by force.”[21]
The Ultimate Violation: Extrajudicial Killings and Enforced Disappearances
In Independent Medico-Legal Unit (IMLU) & 4 Others v Attorney General [2011] eKLR, the court was seized with the issue of deaths and disappearances during security operations. While the case law in this specific area often struggles with evidentiary burdens, the judiciary has affirmed the state’s positive obligation under Article 26 (Right to Life) to protect life and, crucially, to investigate all suspicious deaths[22].
However, accountability remains elusive. Reports by the UN Special Rapporteur on extrajudicial, summary or arbitrary executions, as well as by domestic watchdogs, consistently point to a culture of impunity within the Kenyan National Police Service. EJKs and EDs are tools of parallel “justice,” circumventing the judiciary entirely. They are the ultimate expression of authoritarianism, creating a climate of fear that chills dissent, silences witnesses, and dismantles community resistance far more effectively than any law.
Emerging Trends: Gen Z Activism and Digital Resistance
Into this arena of institutional friction has emerged a new, non-traditional political actor: Kenya’s Generation Z. The 2024 anti-Finance Bill protests (dubbed “Occupy Parliament”) represent a paradigm shift in civic resistance, directly confronting the state apparatus described in this article.
This movement is legally significant for several reasons:
- Decentralized and Leaderless: Harnessing the power of social media platforms (TikTok, X, and Instagram), Gen Z activists organized a nationwide protest movement that was fluid, leaderless, and difficult for the state to co-opt or decapitate by arresting traditional leaders.
- Digital Constitutionalism: This generation has intuitively grasped the power of digital tools to exercise their constitutional rights. They used social media to exercise Article 33 (Expression), Article 35 (Access to Information) by dissecting complex legislation, and Article 37 (Assembly) by coordinating mass mobilization.
- Countering State Narratives and Impunity: During the protests, Gen Z activists used their mobile phones to document, in real-time, instances of police brutality, abductions, and live shootings. This content was disseminated globally within seconds, bypassing state-controlled media. This “sousveillance” (watching from below) created an immediate, undeniable record of EJKs and EDs, making it a powerful tool for de facto accountability and challenging the state’s monopoly on the narrative.
The state’s response was a predictable escalation of the very tactics this article analyzes: attempted media blackouts, internet throttling, mass arrests, and, tragically, the extrajudicial killing of dozens of unarmed protestors and the alleged abduction of digital activists. This conflict represents the new frontier of human rights: a digitally-native generation using decentralized technology to demand constitutional compliance from an analogue state that responds with brute force.
Comparative Perspectives: State Suppression in the Region
Kenya’s struggles are not unique; they reflect a regional trend of “constitutional authoritarianism,” where democratic facades mask repressive realities.
Uganda: The repeated shutdowns of the internet and social media during election cycles, most notably in 2016 and 2021, mirror the Royal Media Services scenario, but with even greater institutional backing. The Ugandan state has used legislation like the Computer Misuse Act (a precursor to Kenya’s) to systematically jail journalists and critics like Stella Nyanzi, demonstrating a more entrenched legal framework for suppression.[23]
Conclusion and Recommendations
The 2010 Constitution of Kenya remains a transformative and aspirational document, but its promise is under sustained threat from a security-obsessed executive that views human rights as obstacles to state power, not as the very purpose of it. The judiciary has acted as a crucial, if not always successful, bulwark, but legal pronouncements are meaningless without political will and executive compliance. The rise of a digitally-savvy generation of activists has created a new accountability front, but one that is met with lethal force.
To bridge the gap between de jure constitutionalism and de facto authoritarianism, the following reforms are imperative:
Legal and Institutional Recommendations:
- 1. Strengthen Judicial Authority: Parliament must enact robust “contempt of court” legislation specifically targeting state officers who disobey court orders, including personal financial and legal consequences for officials who defy the judiciary, such as those in the Royal Media Services case.
- Enforce Individual Criminal Liability for EJKs: The ODPP and IPOA must operate with genuine independence and sufficient funding. A “chain of command” prosecutorial model should be adopted to hold superior officers accountable for the actions of their subordinates, breaking the cycle of impunity for police brutality.
- Protect Digital Freedoms: Parliament must amend the CMCA, 2018, to fully align with the BAKE judgment and international standards on freedom of expression. Any future legislation on “cybersecurity” must be subjected to a rigorous human rights-based assessment.
Institutional and Policy Recommendations:
- Demilitarize Policing: The state must urgently invest in retraining the National Police Service, shifting its doctrine from “force” to “service” and “facilitation” of rights, as envisioned by the court in the CORD case.
- Resource Accountability Bodies: The Kenya National Commission on Human Rights (KNCHR) and IPOA must be granted full financial autonomy from the executive to ensure their independence.
- 3. Engage, Don’t Repress, Youth Movements: The state must recognize the legitimacy of the grievances raised by movements like the 2024 Gen Z protests. Using extrajudicial killings and abductions to manage dissent is not only unconstitutional but also unsustainable, radicalizing a generation and guaranteeing future instability.
In conclusion, Kenya cannot exist as both a constitutional democracy and a repressive state simultaneously. A choice must be made. Upholding the rule of law is not a matter of convenience; it is the fundamental bargain of the 2010 Constitution. The cost of breaking this bargain, as evidenced by recent events, is paid in human lives and the erosion of the nation’s democratic soul.
List Of References and Authorities
Kenyan Cases:
Bloggers Association of Kenya (BAKE) v Attorney General [2020] eKLR.
Coalition for Reform and Democracy (CORD) & 2 Others v Inspector General of Police & 4 Others [2015] eKLR.
Independent Medico-Legal Unit (IMLU) & 4 Others v Attorney General [2011] eKLR.
Royal Media Services Ltd & 2 Others v Attorney General & 8 Others [2018] eKLR.
Kenyan Statutes and Legislation:
The Constitution of Kenya, 2010.
Computer Misuse and Cybercrimes Act, 2018.
Public Order Act, Cap 56.
International & Regional Instruments:
African Charter on Human and Peoples’ Rights (ACHPR), 1981.
International Covenant on Civil and Political Rights (ICCPR), 1966
Universal Declaration of Human Rights (UDHR), 1948.
Reports & Scholarly Sources:
African Commission on Human and Peoples’ Rights, General Comment No. 3 on the African Charter on Human and Peoples’ Rights: The Right to Life (Article 4). (2015).
Amnesty International, Nigeria: The Lekki Toll Gate Killings Still No Justice. (2022).
Article 19, Kenya: Computer Misuse and Cybercrimes Act. (2018).
Human Rights Watch, Uganda: Internet Shutdown, Social Media Abuses. (2021).
Independent Medico-Legal Unit (IMLU), Annual Reports on Extrajudicial Killings and Torture.
UN Special Rapporteur on extrajudicial, summary or arbitrary executions, Report on Mission to Kenya. (e.g., Reports by Philip Alston (2009) and subsequent follow-ups).
Reference(S):
[1] Royal Media Services Ltd & 2 Others v Attorney General & 8 Others [2018] eKLR
[2] https://www.justsecurity.org/106056/human-rights-priorities-2025/
[3] Constitution of Kenya, 2010
[4] https://www.ohchr.org/en/special-procedures/sr-executions
[5] https://www.numberanalytics.com/blog/ultimate-guide-authoritarianism-philosophy-law
[6] https://www.numberanalytics.com/blog/ultimate-guide-authoritarianism-philosophy-law
[7] https://www.numberanalytics.com/blog/ultimate-guide-authoritarianism-philosophy-law
[8] https://www.justsecurity.org/106056/human-rights-priorities-2025/
[9] https://www.numberanalytics.com/blog/ultimate-guide-authoritarianism-philosophy-law
[10] https://www.iasgyan.in/daily-current-affairs/the-global-state-of-the-freedom-of-the-press
[11] Constitution of Kenya 2010
[12]Universal Declaration of Human Rights (UDHR)
[13] International Covenant On Civil and Political Rights (ICCPR)
[14] African Charter on Human and Peoples’ Rights (ACHPR)
[15] https://achpr.au.int/en/node/851
[16] Royal Media Services Ltd & 2 Others v Attorney General & 8 Others [2018] eKLR
[17] Article 34 of The Constitution of Kenya 2010
[18] Article 35 of The Constitution of Kenya 2010
[19] Coalition for Reform and Democracy (CORD) & 2 Others v Inspector General of Police & 4 Others [2015] eKLR
[20] Bloggers Association of Kenya (BAKE) v Attorney General [2020] eKLR,
[21] Article 19, Kenya: Computer Misuse and Cybercrimes Act. (2018).
[22] Independent Medico-Legal Unit (IMLU) & 4 Others v Attorney General [2011] eKLR
[23]https://www.hrw.org/news/2021/01/21/uganda-elections-marred-violence#:~:text=(Nairobi)%20%E2%80%93%20The%20weeks%20leading,researcher%20at%20Human%20Rights%20Watch.
