Raila stretched court limits and entrenched constitutionalism

ODM leader Raila Odinga addresses supporters after filing the presidential election petition at the Supreme Court in Nairobi, on August 22, 2022. [File, Standard]

Few figures in Kenya’s legal and political history have embodied the spirit of public interest litigation as profoundly as Raila Amolo Odinga. His name, often polarising, evokes admiration and resentment in equal measure. However, even his staunchest critics concede that Raila was not merely a politician, he was a force that stretched the meaning of justice beyond courtroom walls and parliamentary chambers.

Whether he won or lost, his presence altered the texture of constitutional interpretation, the conduct of elections, and the role of the citizen in defending the public good. Raila’s relationship with the law was never passive. He was neither content to be a subject of the law nor to let the law remain the domain of lawyers and judges. To him, justice was a living principle, one that had to be tested, challenged, and, when necessary, defied.

His life unfolded at the turbulent intersection of political activism and constitutional struggle. From the days of detention without trial in the 1980s to the court battles of the 21st century, Raila helped define how citizens could invoke the Constitution to restrain power and demand accountability. Public interest litigation, as understood in Kenya’s jurisprudence, owes much to this defiant tradition.

It is grounded in Articles 3, 22, and 258 of the Constitution which entrench the right and duty of every citizen to defend the Constitution and to institute proceedings when any right or public interest is threatened. These provisions, revolutionary in their breadth, transformed the citizen from a passive observer into an active guardian of legality. Before these words were written into law, they were lived through the struggles of men and women like Raila.

In the 1990s, as Kenya reeled under single-party rule, Raila became a symbol of resistance. His advocacy for multiparty democracy was not framed in the language of court petitions, but in the vocabulary of civil disobedience, demonstrations, rallies, arrests, and imprisonment. However, behind those acts of defiance lay the same constitutional question that now animates public interest litigation: Who guards the guardians? His street battles against impunity were a precursor to the legal consciousness that would later find formal expression in Kenya’s Bill of Rights.

In a sense, every march he led, every detention he endured, was an argument for expanding the locus standi, the right of every Kenyan to speak for the nation when institutions failed. As Kenya transitioned into the multiparty era and later into the constitutional democracy inaugurated in 2010, Raila carried that defiance into the courts. His involvement in electoral disputes was not merely about personal ambition; it was a contest over the integrity of institutions.

His repeated petitions, notably in 2013 and 2017 compelled the Supreme Court to test the limits of its independence and the meaning of a “free and fair” election. The 2017 presidential election petition, which culminated in the annulment of the presidential results, was a watershed moment. For the first time in Africa, a sitting president’s victory was nullified by a court of law. Whether one agreed with Raila or not, the case expanded the frontiers of electoral justice and reinforced the principle that public office is held in trust for the people.

Beyond the courts, Raila’s defiance shaped the culture of constitutionalism. His politics forced Kenyans to confront uncomfortable truths about governance, equity, and national unity. He did not always win; indeed, his career is marked by as many defeats as triumphs. On a broader picture, every defeat left behind a precedent, a lesson, or a question that enriched the democratic discourse. His resilience exemplified the principle that the law, like democracy, is not static, it evolves through contestation.

Raila’s defiant spirit resonated with the essence of Article 3(1) of the Constitution, which commands every person to “respect, uphold and defend” the Constitution. He embodied that duty not through mere compliance but through resistance, a reminder that defending the Constitution sometimes requires disobedience. When institutions bent to political will, he stood as a counterweight, insisting that justice must not only be done but must be seen to be done.

Article 22 extends that mandate by empowering any person to approach the courts to enforce the Bill of Rights. He often spoke of the “people’s sovereignty,” a phrase that in constitutional terms means the people are the ultimate litigants. His insistence that elections belong to the people, not the government, elevated and deepened the jurisprudence on elections.

In the end, this piece is not about whether Raila lived up to the ideals he fought for. It is about the defiant spirit that defined him, a spirit that refused to accept injustice as destiny. It is about a man who, in the courts and in the streets, insisted that the law must serve the public good, even when the public is afraid to demand it. In that sense, Raila was not merely a participant in Kenya’s legal evolution; he was one of its architects.

His life remains a testament to the enduring truth that the Constitution is only as strong as those willing to defend it. As Kenya reflects on his passing, the most fitting tribute is not in mourning but in emulation, in keeping alive that stubborn, sometimes inconvenient, but always necessary defiance that fuels public interest litigation. For as Articles 3, 22, and 258 remind us, the Constitution belongs to all of us.