Next week on the 27th of August 2010 we celebrate 10 years of the Constitution of Kenya. There is no better time to reflect on the gains made and the regressions that Kenya has undergone since those heady days when most of us naively believed we had crossed into constitutional Canaan.
The passage of the new Constitution only ranks second in Kenya’s major achievements, upped only by our independence in 1963. In 2010, after many years of sometimes bloody struggle, the Kenyan State was constitutionally re-engineered. The hitherto 'imperial presidency' was shorn of many of the powers it had inherited from the colonial governor.
Prior to 2010, the president controlled the three arms of government totally unchecked. He appointed and sacked judges. He determined the calendar of Parliament and could prologue the House at any time. Half of Parliament comprised of ministers and their assistants and so any motion that the Presidency was interested in passed with no challenge.
The back and forth we are seeing in the Senate now was unimaginable. The president decided when elections would be held. Many of these powers appear unrecognisable today. The Constitution prescribes checks and balances on the exercise of the president’s powers.
On the structure of government, we operated in an extremely centralised administration with weak local governments most of which were bankrupt and were managed by the Local Government minister in Nairobi. As for human rights, the breach thereof was more the rule than the exception.
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Many Kenyans carry scars of torture and incarceration for the sole offence of challenging the government. At one time the attorney general decreed that it was treason to imagine the death of the president! Hence the headiness of August 2010 for those of us who had survived these dark days.
The promise of the Constitution was generous, and we believed that finally Kenya would be a fairer, more just, empowering society with an accountable and transparent leadership. How naive we were! The gap between delivery and promise has been humongous.
In biblical terms, we have the letter of the Constitution without its corresponding power. Parliament is independent on paper but weak and abusive of its powers. It is very careful not to offend the Executive, which retains most of the levers through which it previously exercised power.
Devolution’s promise is a mirage for many. While we have complied with the letter of devolution in that the county governments are established, they are hardly achieving their objectives. Many governors treat them as personal fiefdoms and hardly implement people-empowering programmes. Many are not accountable and have contempt for the voter.
The national government routinely starves counties of money leading to extreme impoverishment of the people the counties contract with.
The Judiciary, while largely independent, is struggling with balancing power with responsibility. On the other hand, its reduced budget allocation has led to reduced effectiveness. The dragon of corruption within judicial ranks is no longer just a whisper, there is enough anecdotal evidence of graft creeping back.
On leadership, the much acclaimed Chapter Six, which was to ensure appointment and election of leaders with integrity, sounds like a bad joke. All manner of charlatans sit in public offices. If the current allegations on theft of Covid-19 monies is even 10 per cent correct, it will mean we have hardly made any movement towards killing this demon.
As we look back on these 10 years, there is much to be grateful for but a lot is still undone. While there are areas that require some panel beating to make the Constitution more effective, our focus ought to be on understanding the whys in the areas where the Constitution failed to deliver on its promise.
Consequently, any improvement on the Constitution must not just seek to add and share positions of power for the sake of political peace. It should also answer how the Constitution can be made to respond to the needs of the rank and file of Kenyans. That was the essential basis why Kenyans invested in Project Constitution 2010. They await with longing for most of its promised dividends.
- The writer is an advocate of the High Court of Kenya
