The Room the Constitution Left Open

Isaac Aluochier, S.Arb, S.Adj, Arbitral Fellow, CPM · Aluochier Dispute Resolution · July 2026

Article 1 of the Constitution begins with a sentence every Kenyan schoolchild is made to memorise and few are made to feel: all sovereign power belongs to the people. Not to an office. Not to a title. To the people. What follows is stranger and more interesting than the opening sentence itself, because the people, having gathered all this power to themselves, immediately begin lending it out. They lend it to the National Assembly and the Senate, and to the county assemblies. They lend it to the national executive and to the county executives. They lend it, with particular solemnity, to the Judiciary. And then, in a clause most Kenyans have never been asked to read twice, they lend it again, to independent tribunals.

Six rooms, then, in which the people's sovereign power is exercised by delegation. Four of them are filled by direct contest at the ballot. A fifth, the Judiciary, is filled by appointment too, but on the Judicial Service Commission's own calendar of vacancy and budgetary allocation, not the electoral one. The sixth follows neither calendar, and that is precisely where this invitation begins.

Every five years, in the months around a general election, close to fifteen thousand Kenyans present themselves for office in the four familiar elected rooms: a seat in the National Assembly or Senate, a county assembly ward, the presidency, a governorship, and the offices around them. It is loud, it is public, it is contested in the full glare of the nation's attention, and the door to it opens on a fixed date, once every five years, whether or not the country has enough of what those seats produce.

The fifth room, the Judiciary, is filled differently again. Judicial officers are recruited and disciplined by the Judicial Service Commission entirely outside that electoral calendar; but that room, too, opens only when a vacancy exists and a budgetary allocation is available to fill it. It is a door that opens on the Commission's schedule, not a citizen's.

The sixth room follows neither calendar. Independent tribunals are named directly in Article 1(3)(c), standing beside the Judiciary as delegates of the people's sovereign power; but entry to that room is by appointment, not election, “through mechanisms recognised by or under this Constitution.” No single equivalent gatekeeper exists for independent tribunals, however. What exists instead is a lattice of constitutional provision: Articles 1, 2, 3, 10, 47, 48, 50, 60(1)(g), 159, 165 and 232; and, at its practical centre, Article 47 together with its enabling statute, the Fair Administrative Action Act.

That Act does not ask for a courtroom pedigree at the door. It defines “administrative action” broadly enough to include action taken under a law, a rule of common law, customary law, an agreement, an instrument, or any other document. The door into the sixth room was built wide, and built that way deliberately.

Kenya's Judiciary today numbers roughly one thousand judicial officers, from magistrate to Chief Justice, a settled fact of institutional capacity that the country trains toward and budgets around, and cannot casually expand. Independent tribunals carry no such ceiling. No statute limits how many quasi-judicial tribunal members a nation of well over fifty-eight million people may need.

The country's own courts have quietly told us how large that need already is. Surveys undertaken by the Judiciary itself find that the formal court system handles fewer than one dispute in five arising in Kenya. Over eighty per cent of the nation's commercial, domestic, testamentary, and other disputes are being resolved, or left unresolved, somewhere outside the courtroom altogether. That is not a gap in the justice system. It is the largest room in the house, standing mostly empty of anyone constitutionally equipped to work in it.

Looking only to the next five-year electoral cycle, the interval in which fifteen thousand Kenyans will contest the four familiar rooms, well over five thousand persons will be needed to serve as independent quasi-judicial tribunal members, and a further ten thousand or more will be needed as trained representatives of disputants before them. Nobody is currently competing for those places. They are simply, at present, empty.

One fact about this room deserves to be said plainly, because this invitation is not built on a comfortable omission. Of the six categories of delegates through whom the people exercise their sovereign power, five draw remuneration from the public purse. Independent tribunals are not written into that arrangement. Where their financing is not incidental to the other five, it falls to the people who actually use them, the disputants themselves, to fund the resolution of their own disputes.

This is not a weakness to apologise for. It is the honest shape of the opportunity. A tribunal member here is not a salaried officer awaiting a treasury disbursement, but a professional whose standing, skill, and diligence are tested directly against the community that appoints them, case by case. It is closer to building a practice than drawing a stipend, slower at the outset, and, for those who do the work of becoming genuinely good at it, considerably more their own.

This invitation is not written only for the already-credentialled. It is written, deliberately and without qualification, for the recent graduate who has never sat as an arbitrator; for the community elder who has spent thirty years quietly settling disputes nobody wrote down; for the young professional in Rongo, Kisumu, Nairobi, or Wajir who has never worn a wig but has always been the one others bring their disagreements to. The AITAR Roster is built in tiers precisely so the bottom rung is a real rung, a place to begin, to be trained, to be examined, and to be admitted on the same constitutional footing as everyone above, with a clear and published path upward for those with the discipline to climb it.

What is asked of you is not a credential you must already hold. It is the desire to do this work honestly, and the intelligence to be trained to do it well. The Constitution asked the same of a rebuilt Judiciary in 2010. It is asking again now, quietly, of a room most Kenyans do not yet know is open.

You do not need to wait for August 2027. The four elected rooms open only on that date. The Judiciary's door opens only when a vacancy and a budgetary allocation align, on the Commission's calendar, not a citizen's. The sixth is open today, waiting on neither election nor vacancy. Applications to the AITAR Roster, at every tier, are being received now, and full information on tiers, training, and the appointment mechanism itself is available at gazette.aluochier.co.ke/roster/index.html.

The people of Kenya delegated their sovereign power to six kinds of office. Four will be contested loudly, once, in the next general election. A fifth waits on the Judicial Service Commission's own calendar of vacancy and budget. The sixth is contested quietly and continuously, by whoever is willing to walk through the door and do the work. At the time of your reading this, it stands open.