Constitution at 14: It may be time to amend law, but it won't be easy ride

Late President Kibaki displays the Constitution during the promulgation of the new constitution at the Uhuru Park grounds in the capital Nairobi. [Reuters]

As the 2010 constitution turned 14 this week since its promulgation by the late President Mwai Kibaki, questions have been raised over the commitment of the last and current governments to fully implement it.

Debate is also raging on whether it should be amended or not after previous attempts to change it some articles through the Building Bridges Initiative (BBI) by President Uhuru Kenyatta and opposition leader Raila Odinga failed.

Another effort from the Third Way Alliance Party led by Ekuru Aukot also flopped and a similar fate appears to have befallen proposals made by the recently concluded National Dialogue Committee (NADCO) that was co-chaired by Kalonzo Musyoka and Kimani Iching’wah.

Makueni Senator Dan Maanzo Maanzo thinks the constitution is generally good but its implementation has been compromised by political interests and the capture of parliament by the executive arm of government.

“The problem is politics and that is why parliament has failed because it has been captured. If the constitution is fully implemented, the country will not be in the position it finds itself in because the executive would be fully checked,” says Maanzo.

Former Cabinet Secretary Eugene Wamalwa recently refused to sign the NADCO report, arguing that only sharing of leadership positions was addressed in the report that omitted critical issues like the high cost of living and human rights abuse which Kenyans wanted dealt with.

He regretted why the Azimio la Umoja One Kenya coalition agreed to take part in the talks at Bomas of Kenya because it emerged to be a gimmick that was used to cool down heat from Kenyans protesting against the high cost of living last year.

Former Mandera Central MP Abdikadir Mohammed who chaired the Naivasha Accord that developed the final draft of the current constitution after lengthy dialogue says the document was not perfect because it a product of political negotiation.

The lawyer chaired the last Parliamentary Select Committee (PSC) on the Constitution after the contentious 2007 elections, after a previous attempt to get a new document was defeated in the 2005 referendum.

Kenyans had rejected the referendum bill drafted under the leadership of the late Simeon Nyachae whose team produced the Wako draft after a meeting held at the Sand & Sand Hotel in Kilifi.

They produced a final draft which watered down devolution and also retained a presidential system and the provincial administration resulting in the defeat of the referendum that was supported by president Kibaki.

The constitution-making process began with agitation from civil society and opposition leaders leading to street protests, culminating into the Saba Saba demonstrations in 1990 that forced President Moi to begin the change process.

After sustained pressure, President Daniel arap Moi agreed to change the constitution 10 years later and thereafter invited Raila and his NDP party into government at the New Kanu delegates conference meeting held at Kasarani stadium on March 18, 2002.

The current ODM leader was thereafter appointed to be the first chairman of the PSC on Constitution change, positions that were also later held by William Ruto and Nyachae before the process collapsed after Moi had retired from power.

President Moi appointed Prof Yash Pal Ghai to chair the process upon recommendation from then Attorney General Amos Wako, an old friend of the legal scholar from their days at the Dar-es-Salaam University law school.

The constitutional lawyer, acclaimed for drafting many constitutions around the world, took up the challenge and arrived in the country with much fanfare to take charge of the Constitution Review Commission of Kenya (CKRC) then based at Hazina Towers.

Ghai quickly invited the civil society-led Peoples Commission of Kenya by the late Dr Oki Ooko Ombaka, then called the Ufungamano process that had earlier been rejected by the government thus creating room for consensus with support from all Kenyans.

They thereafter began collecting views across the country at public hearings and discussions before producing several drafts that finally ended up at the Bomas of Kenya constitution review conference.

The conference was however marred by political battles between powerful politicians allied to president Kibaki’s wing in the Narc government and those who supported the LDP faction led by Raila.

After the 2007 post elections violence, former UN Secretary General Kofi Annan’s team that mediated the peace talks proposed that urgent constitution review be conducted as part of the reforms to bring back unity and law in the country.

Constitutional experts argue that the 2010 constitution now needs to be amended because it was largely influenced by political interests through a give-and-take during the Naivasha Accord talks chaired by Abdikadir.

The former MP who was also a presidential advisor to Uhuru Kenyatta, has previously told The Standard that the document is ripe for amendment because it was not perfect.

He gives the Senate as an example, describing it as a mongrel that was created through personal interest by members of the National Assembly who populated the Naivasha talks because there were no senators at the time,

At the time, the MPs wanted to retain all the legislative powers as opposed to the strong senate that the Bomas draft had recommended, not knowing that some of them would also later become senators.

“ODM wanted a parliamentary system with a strong senate while PNU wanted a hybrid of both presidential and parliamentary government and so we had to negotiate and ended up with a weak senate,” says Abdikadir.

He thinks that there is an opportunity to rectify that now because of the experience gained and the challenges of oversighting devolution so that Senate is given teeth to bite.

The constitution has not been fully implemented, largely because the political class is mostly interested in changing the constitution to create positions for themselves under the guise of inclusivity instead of enhancing provisions and issues that are related to good governance.

Politics also played a big role in retaining the presidential system when Kenyans across the country had recommended a parliamentary system of government with a powerful Senate and lean devolved governments based in former provinces apart from Rift Valley that was to be divided into two.

Before 2018, Aukot’s Punguza Mizigo initiative that was approved by IEBC before it was rejected at the county assembly level recommended the creation of a strong senate and more money for development at ward level.

They argued that a strong senate could have provided checks against a national assembly that is captured by the executive and was also guilty for increasing salaries and allowances for themselves in a strained economy.

Vihiga Senator Godfrey Osotsi is not a proponent of constitution change but instead wants it to be fully implemented so that institutions can function to end corruption and promote good governance.

“The idea of devolution was very good but it has not been fully implemented. Corruption and mismanagement are still rampant in counties and national government while devolved functions like health and agriculture are underfunded,” says Osotsi.

He also decried the dysfunctional legislature which is supposed to work as an independent institution with both the minority and majority both playing an oversight role, yet they still operate as if they belong to the opposition and government.

The MP also argues that corruption can be eliminated if leaders observe chapter six with fidelity instead of focusing more on trying to amend the constitution. 

Aukot says the constitution needs to be reviewed as provided for in articles 255, 256 and 257 of the constitution because the people of Kenya want people with impeccable character as required by chapter six.

“It is not a failure of the constitution or the people who elect their leaders but it is the failure of those elected because of not doing what is expected of them after taking office,” says Aukot.

He faulted the president’s on going countrywide visits, arguing that they are a waste of public funds which is contrary to article 201 that calls for prudent use and management of public finance.

The lawyer who was in the team of committee of experts that drafted the final the document tabled in Naivasha further argues that the country largely suffers from poor leadership, a malaise that even the best constitution in the world cannot cure.

“The spirit of the constitution must be reflected in the leadership of a country. Any decision that government takes must reflect the wishes of the people because all sovereign power is vested in them,” added Aukot.

He regrets that President Ruto has also now captured Raila and his ODM party through the so called broad based government which becomes a bigger threat to constitutional orders and good governance because he can use the numbers to disrupt parliament.

Maanzo also thinks recent political developments in the country could spell more doom on the implementation of the constitution because the executive has gone wild and therefore needs not checked.

He also fears political interference can bog down any meaningful amendments but lauded the courts for making the constitution functional through correct interpretation of the law whenever the government has attempted to flout it.

“There are sections that can be amended by parliament and those that can go to the referendum. NADC was supposed to review some acts of parliament,” says Maanzo.