A Lockean audit of Kenya’s Constitutional Trusteeship

“Whenever the legislators endeavour to take away, and destroy the property of the people, or to reduce them to slavery under arbitrary power, they put themselves into a state of war with the people, who are thereupon absolved from any further obedience, and are left to the common refuge which God hath provided for all men against force and violence.” John Locke, Second Treatise of Government

Abstract

This article interrogates the contemporary governance of the Kenyan state through the lens of John Locke’s classical liberal theory of the social contract. It employs a doctrinal analysis of the Constitution of Kenya, 2010, alongside a comparative review of recent executive and legislative actions, the author argues that the Kenyan state has entered a period of fiduciary default. The article 1 examines the “Locke Test”—a measure of governmental legitimacy based on the preservation of life, liberty, and estate— against the backdrop of the 2024–2025 fiscal crises, judicial defiance, and the erosion of the tax-consent nexus. The author concludes that the systematic breach of constitutional trust necessitates a radical return to Lockeian first principles to prevent the total dissolution of the Kenyan social contract.

I. Introduction:

The Lockeian architecture of the 2010 Charter The promulgation of the Constitution of Kenya, 2010, was heralded as a transformative moment, a decisive break from the hyper-executive legacy of the post independence era. At its jurisprudential core, the 2010 Charter is an inherently Lockean document. It rejects the Hobbesian surrender of rights to an absolute Leviathan, opting instead for the Lockean Trust. Under this framework, sovereignty remains with the people as stated in Article 1,4 and the government is merely a fiduciary trustee appointed for the “mutual preservation of their lives, liberties, and estates read more...