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Yash Ghai

The chapter explores the role played by civil society in the reform and making of constitutions and the various ways through which participatory processes of constitution making allow for groups hitherto marginalized, to have an active role in the design of their governmental institutions. By focusing on the case of Kenya, the chapter traces the role of civil society and other communities and groups in the making of the 2010 Constitution, especially during the first phase of the process, from the establishment of the Constitution of Kenya Review Commission (CKRC) in late 2000 to the adoption of the draft constitution by the Kenya National Constitutional Conference (“Bomas”) in April 2014. Taking into account both formal and informal aspects of the constitution making process, the chapter aims at examining the various components of a participatory process influenced by an active engagement of civil society, and assess their impact on the process and outcome. It demonstrates how the impact of participation on the constitutional decision maker significantly depends on the effectiveness of the civil society organizations, on the persuasiveness of public submissions, on connectedness to powerful interests, and on the zeal of organizations’ campaign.