Ten years is a short time, but long enough to test a new Constitution. An earlier attempt to change the Constitution in 2005 had failed, leading to tension and post-election violence in 2007-08.
The chaos catalysed the birth of the new Constitution; no wonder the 2010 document has been labelled the ceasefire document.
Few want to hear that it borrowed heavily from Nigeria and USA, far different entities. The contentious issues were left hanging despite the promise that they would be sorted later.
That later, it seems is now. But why so close to the 2022 polls? Maybe, like the 2005 referendum, it could be a good dress rehearsal.
The key facet of the Constitution was devolution, which I would prefer to call distribution of political power. It is not just the counties that got power, constitutional commissions, judiciary and parliament got their share.
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The presidency was the biggest loser, yet we still want the president to solve all our problems. The big man syndrome still haunts us.
Devolution was the most celebrated provision with counties getting governors and a kitty to control. Wanjiku got power too, but has not exploited it, the Government is still seen as too powerful to challenge. Any MP or MCA recalled?
Without economic power, Wanjiku lost interest in politics. It was assumed that the voter would check on MPs and other representatives. Unchecked, they have had a field day doing what they want.
The president has little power over them. The threat of dissolving parliament by the president kept MPs straight in the old Constitution. With courts, one can now challenge any power in Kenya.
The mayors disappeared and the provincial administration lost its power despite more counties, sub-counties and associated units.
Legal issues have become the staple in Kenya with lawyers suing and counter-suing. Ethnic identity became more entrenched while corruption has thrived. We were bold enough to even legislate morality and ethics in Chapter 6 of the Constitution.
Read the document again. Did it work? Yes, in reducing physical conflicts, but the emotional conflicts are still rife, going by what we read in the media.
The economic part of the Constitution has not worked as expected. Poverty has not reduced significantly, yet it drove the new Constitution. Believe it or not, the word poverty does not appear in our 2010 Constitution! The word wealth only appears in ‘Commonwealth’.
The current fight over the revenue sharing formula shows the economic part of the Constitution is still work in progress. The popularity of the supreme law was driven by the fact that counties would get money from the national government unconditionally. Hard work lost its hallowed status.
Once money got to the counties, it was expected Wanjiku would watch over it, but she has other things to do.
After investment conferences, the would-be investors went home. Which opportunities had they not seen that needed showcasing in conferences?
Few factories have come up after devolution. Curiously hotels have sprouted, where do their patrons come from?
Back to the basics; which reforms do we need in the Constitution? We are too focused on the ruling elite; getting a prime minister and deputies, distribution of power across regions - which will make it easier to win the general elections.
Just promise the right kingpins these positions. With herd mentality, swaying the masses is easy and cheap.
Between 14 and 18 regional governments are being proposed, an idea originally in the Bomas Draft. The ghosts of provinces have refused to go. Never mind that the retiring governors are likely to be salivating at new big posts.
It seems governing Kenya is so hard; we have not found the right structure after experimenting for 57 years.
The middle class is too busy trying to be rich or keep up with neighbours to bother with concrete reforms. Ever wondered why primary school teachers got a commission, but not university lecturers or medical doctors in the Constitution?
The low-income earner is too busy trying to make ends meet to bother with constitutional reforms. Having not gained much except some freedom from the Constitution, they are not bothered. They have learned that their voting does not significantly change their fate. Apathy reigns.
The first reform is to ensure that we start thinking differently, to stop feeling helpless against our leaders and circumstances. Voting does not end on voting day; voters must remain vigilant. The public consultation in the constitution should be enforced.
Second is to make Wanjiku economically independent. That will make her a better voter, with a stake in the economy. If more of us became entrepreneurs and made money, we would gain confidence and demand reforms in the political arena. That is how democracy flowered in South Korea and other new democracies.
But our upbringing rewards jobs, not risk-taking. The key input into entrepreneurship is creativity and innovation, now muted by social media and ‘good life’, devoid of struggle. Conformity is now valued in school and out of school.
Ten years have shown that economics should come before politics, not the other way round. With altruism, patriotism, realism and no shade of self-interest, I propose that the current and the proposed constitutions be audited by economists.
- The writer is associate professor at the University of Nairobi
