2010 Constitution, 14 years later

 

When the late former President Mwai Kibaki displayed a copy of the New Constitution after the Promulgation ceremony at Uhuru Park, Nairobi on August 27, 2010. [File, Standard]

Fourteen years ago, Kenyans welcomed the Constitution of Kenya 2010 with immense hope and pride. The promulgation marked the beginning of what was envisioned as a transformative era, a time when every citizen would finally enjoy the full spectrum of rights and freedoms guaranteed by one of the most progressive constitutional frameworks in the world. The constitution was seen as a powerful tool, designed to protect the marginalised, promote equality, and uphold justice across all sectors of society.

However, as we reflect on this 14th anniversary, many Kenyans have a profound sense of frustration and disillusionment. The promise of the Constitution has not been fully realised. The rights and freedoms so vigorously fought for have been systematically eroded, particularly in areas where protection is most needed. Discrimination, including in reproductive choices, has become entrenched. This is not just an oversight; it is a deliberate violation of the spirit and letter of the constitution. The area of Sexual and Reproductive Health and Rights (SRHR) has suffered immensely, with women and girls bearing the brunt of this betrayal. Their struggle for bodily autonomy and control over their reproductive choices has been met with resistance, prejudice, and outright discrimination, a reality in contrast with the promises enshrined in the constitution, on access to the highest attainable standard of healthcare.

The expectation was that all arms of government would be vigilant in safeguarding these constitutional provisions. Instead, what we have witnessed is a disturbing pattern of negligence and outright defiance. The various arms of government, rather than upholding their duty to implement and protect the constitution, have become complicit in undermining it. The National Police Service, in particular, has failed miserably in its mandate to protect citizens. Their conduct during protests has revealed a deep-seated disregard for the rights of Kenyans, especially when it comes to the freedoms of assembly and expression. This is an unacceptable breach of trust and duty.

Despite the existence of an elaborate Bill of Rights, it has become increasingly clear that the executive branch cannot be trusted to respect these rights. Time and again, it has been the courts that have had to step in to uphold the constitution and prevent further abuses. The judiciary, therefore, must be commended for its steadfast commitment to protecting constitutional rights. Recently, the courts have reaffirmed critical rights, including the right to protest and picket, the rights of arrested persons, and basic rights to healthcare and education, decisions that have been crucial in curbing the executive's excesses and safeguarding the freedoms of Kenyans.

As we commemorate this important anniversary, it is not enough for the government to pay lip service to the constitution. There must be a renewed and genuine commitment to respecting and upholding the constitution, contrary to the troubling behaviour we have witnessed in recent months. This is not just a matter of legal obligation, but a moral duty owed to every Kenyan who believed in the promise of the constitution.

Furthermore, Kenyans must remain vigilant against any attempts to undermine the constitution through proposed amendments. Too often, these proposals are driven by selfish leaders with personal agendas, particularly the extension of their terms in office. Such moves must be resisted with the full force of public opinion and legal action where necessary.

We, the people of Kenya, hold sovereign power, and it is our responsibility to exercise this power in accordance with the constitution. We must continuously educate ourselves about our rights, empower our communities, and speak out against any actions that threaten our freedoms. The Constitution is not just a document; it is a covenant between the people and the government, and it is our collective duty to ensure that this covenant is honoured, protected, and preserved for future generations.

Kavutha Mutua is an Advocate of the High Court of Kenya and a Human Rights practitioner.  [e-mail]