Broad-based government is unconstitutional

The late Chief Justice CB Madan famously asked; “What is the value of a Constitution if it is not respected and obeyed?” You see our Constitution is unambiguous: government can only be established through legal frameworks provided within it.

Article 3(2) states in clear terms: “Any attempt to establish a government otherwise than in compliance with this Constitution is unlawful.”
Despite this, President William Ruto and ODM leader Raila Odinga have conjured up a political arrangement they call a broad-based government — a structure with no constitutional foundation. Unlike legally recognised coalitions, which are anchored in the Constitution and the Political Parties Act, this so-called broad-based government is an undefined, extralegal entity created purely for political expediency. By their own admission, Ruto and Raila have rejected coalition agreements while simultaneously restructuring the government to accommodate opposition leaders. This is not just a constitutional violation—it is an attempt to alter the structure of government outside legal means. In any serious country, such action would result in severe legal consequences, including prosecution and impeachment.

Kenya’s system of governance is clearly defined: an Executive led by the President, an independent Judiciary, and a bicameral Parliament. The formation of government follows strict constitutional procedures, including elections and, where applicable, legally structured coalitions. Nowhere does the Constitution provide for a broad-based government, nor does it allow the President to expand the Executive arbitrarily.

By introducing an undefined governance model, Ruto and Raila are circumventing the will of the electorate and undermining multi-party democracy. This sets a dangerous precedent where any President can dismantle the opposition through informal political deals.

If this unconstitutional arrangement is allowed to stand, what stops future leaders from inventing similar structures—whether it be military-backed governments, caretaker regimes, or executive councils — all without public participation or legal backing? Our Constitution was designed to prevent such.

Kenyan law is clear: any attempt to establish or alter government structures outside constitutional processes is an act of treason. By forming a government outside the recognised electoral and coalition framework, Ruto and Raila are effectively engaging in an unconstitutional power grab. History has shown in serious democracies, such actions are met with accountability.

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In South Korea, leaders who attempted to govern outside the law were jailed. In Kenya, however, political convenience has replaced constitutional order. This lawlessness must not be normalised. One of the justifications given for this unconstitutional arrangement is the claim that it fosters ‘national unity’. This is a blatant falsehood.

Kenyans are not divided by politics—they are united by economic hardship. The high cost of living, excessive taxation, unemployment, and government inefficiency have already forged a strong sense of national unity. What divides Kenyans is not ideology, but the greed of the political elite, who manipulate ethnic and political divisions to sustain their grip on power.

The so-called broad-based government is a betrayal of the 2010 Constitution and a direct affront to democracy. If Kenya is to remain a constitutional democracy, this political fraud must be rejected in its entirety. The rule of law must prevail. Kenyans must resist normalisation of unconstitutional governance, and those responsible held accountable. The time to act is now—before political impunity renders our hard fought for Constitution meaningless.

-The writer is a former MP and an advocate of the High Court of Kenya