Hits and misses in 10 years of new constitutional order

Ten years after the promulgation of the Constitution hailed as the most progressive and transformative document that would cure many of the problems faced by Kenyans including electoral violence, the country is unsure whether or not it should be amended.

The clamour for constitutional reforms had taken over two decades. However, it was the African Union-led National Accord and Reconciliation process that cemented the need for the changes.

The AU sent in what would be refereed to as the Panel of Eminent African Personalities, chaired by the late and former UN Secretary General Kofi Annan, to restore peace following post-election violence over the disputed 2007 General Election.

Other members of the panel were the late former Tanzanian President Benjamin Mkapa and the former South African First Lady Graca Machel.

The violence that left 1,300 people dead and over 600,000 uprooted from their homes in the ensuing violence that took a tribal angle followed declaration of Mwai Kibaki of Party of National Unity (PNU) the winner by the electoral commission. His main rival, Raila Odinga of ODM and his supporters, rejected the result claiming Mr Kibaki had stolen their victory.

Kibaki was declared winner with 4,584,721 votes (46.4 per cent) against Raila’s 4,352,993 or 44.1 per cent. Kalonzo Musyoka of ODM-Kenya was third with 879,903 votes (8.9 per cent).

Raila and Kibaki would agree to talks and the reconciliation process identified areas that needed to be addressed to avoid such conflicts in future. 

The Constitution captured aspirations of Kenya as were captured under Agenda Four of the Serena mediation talks. These included constitutional and institutional reforms as well as land reforms.

Regional imbalance

The reforms also looked at legal frameworks, ways of eradicating poverty, inequality and regional imbalance. Also to be addressed was youth unemployment. The need to consolidate national cohesion and unity and to enhance transparency, accountability and end impunity was also emphasised.

Lawyer Bobby Mkangi, who was a member of the team of experts that drew the 2010 Constitution, said the country has realised several achievements since the new law took effect.

Mkangi spoke of peaceful elections in 2013 and 2017 where those unhappy with the outcome decided to sort the matter in court instead of street protests. 

Opposition candidate Raila Odinga went to court to challenge President Uhuru Kenyatta’s win which demonstrated increased confidence in decisions courts are making, Mkangi said.

“For the Judiciary to come up as a critical arm of government is a by-product on the 2010 Constitution. The Judiciary has become a defender of the Constitution through progressive decisions that have somewhat ensured adherence to the rule of law,” he said.

Mkangi also pointed to the push and pull between the Judiciary and the Executive an indication courts have become stronger unlike in the past when they would play to the whims of the Presidency. 

He lauded devolution as another score by the Constitution, ensuring access to basic services such as healthcare in almost all parts of Kenya. An improved Bill of Rights has opened up more space for civil, political and socio-economic rights that had been stifled.

Nandi senator Samson Cherargei said devolution is a major milestone in the 2010 Constitution noting its impact has been felt across the country.

The Constitution transformed the 47 districts in the unitary State into counties. Before then, all decisions about the country’s affair were made from Nairobi.

“In the past, people sitting in Nairobi were making decisions for Kenyans in areas they had not even set foot. The result was marginalisation of some regions. Today, even though with some challenges, including shortage of funds, devolution is changing lives in the villages,” said Cherargei.

The Constitution reforms was a tedious process that started with amending the law to allow for its review. There was also a parliamentary process, a team of constitutional experts and a parliamentary select committee then back to parliament before a referendum.

Early in 2005, the proposed draft constitution was rejected by the electorate in a much heated campaigns by the Orange and Banana teams.

The system of government, devolution and implementation of the Constitution had been identified as the main contentious issues that had to be agreed upon.

However, certain aspects of the Constitution remain unimplemented ten years down the line. These include the gender bill that Parliament has failed to pass three times.

Article 27(8) of the Constitution provides that not more than two-thirds of the members of elective or appointed bodies shall be of the same gender, under the now famous two-thirds gender rule.

In 2012, the Supreme Court gave an advisory opinion requiring progressive implementation of the two-thirds gender rule, but to date the same has not been implemented.

Former Justice and Constitutional Affairs Minister Martha Karua said the Chapter on leadership and integrity remains largely ignored as wastage of public resource, nepotism and impunity continue thriving in Kenya.

“Every other day, there are reports of billions of public funds that are unaccounted for or ending in the pockets of individuals. Anti-corruption cases fail to have the big offenders jailed and this has watered down the importance of the new Constitution,” said Karua.

Karua added: “Currently, there is agitation for amendments that are being championed by the political ruling class. As indicated earlier, they propose to amend the text to address issues they have failed and or are unable to tackle.”

According to Mugambi Laibuta, a lawyer with the African Network of Constitutional Lawyers Association (ANCL), the ruling class believes amending the text to provide for more positions within the Executive will solve challenges bedeviling Kenya.

Interest of Kenyans

“Granted though, I believe it is important to test the limits of the Constitution through such initiatives. Unfortunately, the outcome may not be for the best interest of Kenyans. Unlike previous constitutional review processes, the current proposals do not address the plight of the common Kenyan,” Laibuta said in a text on the ANCL website. Laibuta said without full implementation of the Constitution and adherence to the leadership and integrity chapter, no amount of amendments will address problem faced by tthe common Kenyan.

“The next ten years remain crucial. I believe they will usher in further entrenchment of devolution, promotion and protection of fundamental rights and freedoms and greater accountability of how public resources are administered,” he said.

But all depends on the independence and confidence within which constitutional organs such as the Judiciary, legislature, independent offices and constitutional commissions operate. Unfortunately, the Executive currently has a chokehold on the legislature.