A steel sculpture and the new Kenya constitution

Acclaimed Kenyan artist Sebastian Kiarie anticipated the surprise of the vendor when he visited a neighbourhood hardware store with an order for hundreds of machetes one morning in 2016. Mass buying of pangas was chillingly reminiscent of the atrocities committed during the incendiary 2007 political clashes which nearly fragmented Kenya. The shell-shocked shop owner only agreed to sell his entire stock of pangas for the year because the artist is well-known in Chunga Mali off the Nairobi-Naivasha road at Limuru.

Incurring heavy production costs, Sebastian was propelled by an irresistible inspiration to create his now famed sculpture ‘The Throne of Impunity’; well sure that most of his customers would not love its macabre theme which was accentuated by numerous protruding pangas and a deathly ‘blood-soaked’ cloth spreading at its foot. Its monstrous size was an additional put-off for potential buyers. But he didn’t care. Sebastian told us that the creative artistic work and the chilling warning to the Kenyan political class never to repeat 2007, was reward enough. 

The Kenya Constitution and Mr Kiarie’s grand sculpture have much in common. They were both dramatically created in reaction to national trauma. Bloated and expensive, each has been a (social) media sensation, and each has provided a temporary emotional release. They were widely admired and praised, but at the time of writing this article, both are unbought – the Constitution in the sense that not all Kenyans have ‘bought into’ it. Both creations have received conflicting interpretations by independent observers.

It is our considered view that the 2010 Constitution was outrightly too ambitious and ‘toxic’ for the immature political class in Kenya. The excessive corruption and impunity experienced in the public domain today can be traced to the loopholes inherent in the constitution. So can the routine insubordination to superiors by county and national officials, and the emergence of egoistical MCAs, and a ‘weak’ and indecisive presidency. In every sense, the BBI is a byproduct of this murky constitution.

The most threatening booby trap to Deputy President William Ruto’s march to the 2022 presidency has become the catch-22 requirement that he supports the BBI’s change-the-constitution initiative, even against his deepest instincts. Suppose he doesn’t support the BBI and successfully ascends to the presidency? He risks encountering mutations of the same constitutional provisions which have strained his erstwhile ‘bromance’ with President Uhuru Kenyatta. When his turn comes, he might even be successfully impeached within the law.

Like Kiarie’s gruesome sculpture, the 2010 Constitution is an ‘angry’ constitution. It was mainly imposed on Kenyans to forestall a repeat of the election violence. The Constitution was clearly not borne of the cultural, social and political ideals of the Kenyan cosmology. It was a ‘populist constitution’ that Kenyans were apparently not prepared for. It was the biblical new patch on an old garment - the old garment being personified by the bitterness, rigidity and intransigence of those in power, who had the most to lose by its implementation, and who obviously never believed in it in the first place.

For all its inadequacies though, the new constitution has been highly rated and widely admired as among the most progressive in the world in that it guarantees basic human rights and gives citizens enormous powers to determine how they are to be governed. It is because of the above contradictions that we argue that the current constitutional dilemma is a result of the inability or immaturity of Kenyans to consume the Constitution.

The Chief Justice (CJ), the Deputy President and the President himself have been prime examples of poor consumers of constitutional content. Previously unthinkable decisions, such as overturning an election, and recently, advising the President to dissolve Parliament can now be nonchalantly made by the CJ.

By making it impossible for the president to fire his deputy, the constitution ushered in an unprecedented dispensation of an unbelievably audacious DP with overt, unbridled ambitions, and simultaneously created a ‘lame duck’ presidency with outrageously clipped powers. Thus the 2010 Constitution effectively created the Ruto phenomenon, emboldened the CJ and disarmed and humbled Uhuru Kenyatta.

The recently deceased former chairman of the Committee of Experts, Nzamba Kitonga, and his team crafted the Constitution partly to ensure there is no dictatorship in the country. Many of the individuals involved in creating it were drawn from among activists and lawyers. They customised the Constitution to be a tool of activism and as a statement of rebellion against all repression. It was also not lost to other professional cadres that most positions created by the Constitution were custom-made for lawyers.

Ten years down the line, the monster continues to mutate, lately manifesting in the two-thirds gender rule rift, the threat of the dissolution of Parliament advocated by the CJ, the BBI, and a looming referendum.

The devolution dimension of the Constitution also created corrupt and politically powerful governors who make light of human rights, values and the rule of law. The main challenges at the national level, that is, the preponderance of ethnic politics, corruption and lack of resources are duplicated in the devolved units. In other words, the same form of high stakes ‘winner-takes-all’ politics seen at the national level has been ‘devolved’ to the counties. Ethnic majorities in power see it as their ‘turn to eat’ - a code word for accessing State resources. This means minority groups are perennially excluded from accessing resources.

Corruption and clientelism (the exchange of material resources for political support) are endemic at the national level as in the counties.

Maybe Kenya was not ready for such an ambitious and progressive constitution. Perhaps there is such a thing as too much democracy. The 2010 Constitution indeed seems to give ‘the excess of democracy’ without attendant responsibilities and mechanisms.

By surprisingly nullifying the 2017 elections, the Supreme Court and the CJ seemed to act as activists and some felt they were insufficiently deferential to the elected representatives of the people. In subsequent constitutional iterations, it will make much sense to prioritise wresting the Constitution from the courts and restoring it to the people.

Meanwhile, it remains doubtful that the creation of 2010 Constitution, described by former president Mwai Kibaki as “itself an epic watershed moment that brought to an end a long-running quest for change that had lasted no less than two decades” achieved its pacification ideal. The political noises leading to the next elections are deafening and becoming increasingly militant.

2022 seems to have arrived early. Kiarie’s ‘The Throne of Impunity’, still unbought, remains a grim reminder of the downward spiraling path which we must not travel, lest it becomes our national tombstone.

Dr Chacha and Dr Wahome teach at Laikipia University