The Political Question Doctrine and Justiciability of Rights in Kenya in the Post-2010 Constitution Period

Authors Teddy JO Musiga

ISSN: 2521-5434
Affiliations: Assistant Law Reporter/Legal Researcher at the National Council for Law Reporting (Kenya Law) and Advocate of the High Court of Kenya
Source: Africa Journal of Comparative Constitutional Law, 2018, p. 115 – 136


This article examines the place of the political question doctrine in Kenya through two broad limbs. First, it interrogates the question of whether there is a difference between political and constitutional questions, with a view of establishing whether there is a dichotomy between the two issues under the 2010 Constitution. Secondly, it generally scrutinises how the concepts of justiciability and judicial review power relate to the political question doctrine under the Constitution. To demonstrate instances where the political question doctrine has been invoked in the past, or may be invoked in the future, the article makes reference to examples from cases touching on general constitutional litigation, both before and after the promulgation of the 2010 Constitution.