Constitutional moment must involve all citizens

On August 27, 2010, Kenyans watched with pride as President Mwai Kibaki led a team of dignitaries in promulgation of the new Constitution. It was an occasion marked with pomp and colour and equated by many to a rebirth of the nation, similar only to that of independence night, four decades before.

It was also a culmination of two decades of the clamour for a new Constitution that had been characterised by false starts and loss of lives. Kenyans would be forgiven therefore for having overwhelmingly voted ‘Yes’ for the new Constitution, expectant that the moment was what the country had been waiting for and the answer to the several ills that were facing the nation. 

Having come from a tumultuous period two years before, brought about by the post-election crisis, the moment was also seen as a healing moment for Kenya. The nation had learnt its lesson and was ready to move forward.

Separation of powers

Fast forward and ten years later, Kenya finds herself in another so-called constitutional moment, under the Building Bridges Initiative (BBI). However, unlike the Wanjiku-driven and responsive constitutional moment of yore, the current push is largely driven by a political class intent on cannibalising a document whose potential is yet to be realised.

The 2010 Constitution has been hailed as one of the most progressive globally. With a comprehensive Bill of Rights, provisions on equality and inclusion of women, youth and persons with disability, the Supreme Law also has wide ranging liberties for citizens in relation to access to information, freedom of association, movement and media as well as guarantees to basic social-economic rights, including the right to health and education.

The Constitution also guarantees the principle of separation of powers between the three arms of government, providing for strong checks and balances. Taken collectively therefore, the Constitution as currently formulated is a document that addresses all the political, social and economic challenges that have bedeviled the country since independence. 

For this reason, the current efforts to amend the Constitution must be resisted by all Kenyans committed to constitutionalism and the rule of law.  Whereas arguments have been made for the review, and indeed, there might exist some provisions that would do with enhancements, it is, in my view, hypocritical to begin amending a law whose implementation has at best been lackluster. The current administration for example has been at the forefront of flouting the rule of law including judicial decisions.

The current onslaught on the Judiciary and Parliament has only added to the perception that the administration is intent on taking the country back to a centralised model that is not open to divergent and diverse voices. That the ruling party itself is imploding due to this lack of accommodation is a clear indication that the commitment to plurality of ideas and views is no longer appreciated, and that does not augur well for our democracy.

Implemented fully, the Constitution would address most of the ails currently facing the country such as corruption, inequality, exclusion of marginalised and vulnerable groups, disregard for the rule of laws and the equitable distribution of resources that proponents of reviewing the law are advancing.  Accelerating the implementation of the two-thirds gender rule, Chapter 6 on leadership and integrity, devolution and public finance management, if realised would be a game changer for national cohesion thereby reinforcing our national commitment to constitutionalism. 

In my view, this is therefore not the time to cannibalise the Constitution. The political class, advocating a review of the law are doing so for self-preservation and actualisation. It will therefore be foolhardy to trust a constitutional moment to the same people who have blatantly refused to implement the current Constitution. A review of the law must only be based on an audit of a constitution fully implemented.

This is, however, a role that cannot and should not be left to the political class. Citizens must familiarise themselves with the constitutional rights and demand full compliance. 

Full implementation

They must demand more from devolution, from the integrity and values threshold that they place on their leaders as espoused in the supreme law. 

They must demand that before the political class markets the BBI as a panacea to the social political and economic challenges facing the country, the social contract between them on the implementation of the Constitution be honoured. In so doing, they must demand that the only constitutional moment and momentum must be towards accelerating the full implementation. Any other motivation for review must be met with a resounding NO from Kenyans.

-The writer is the Party Leader, Narc Kenya.