The good, the bad and the ugly of seven years under new Constitution

After decades of searching, a quest for which several Kenyans paid with their lives, the country finally got a new Constitution on August 27, 2010. With opinion sharply divided on whether Kenya is the better with the new laws, we take a look back at the moment former President Mwai Kibaki lifted it aloft at Uhuru Park, the very moment that heralded the dawn for a new Kenya.

At Uhuru Park grounds seven years ago on this date, Kenyans were exuberant, united and full of hope for the Constitution they were promulgating on that day.

A united leadership from across the political schisms showed up at the historic grounds, each cheered in equal measure by boisterous crowds.

The chill of that August day was livened by raptures of the crowds, smiles of the leaders, the dance of former First Lady, the late Lucy Kibaki, and the jokes of former Prime Minister Raila Odinga.

The burst of the 21 gun salute sealed it all while the release of white doves by former President Mwai Kibaki signaled new beginnings. A new Kenya was born right in our eyes and the past buried.

But seven years down the line, the old fears are creeping back in torrents. The nation is bereft of the joys and hopes it acquired. The fresh national ethos evoked by the new Constitution appears to have dissipated into thin air.

“If you were a stranger in Kenya, you wouldn’t believe that seven years ago we promulgated a new Constitution. Now we are in similar situation, if not worse, as where we were. I say worse because in the Kanu days, the violations witnessed were actually allowed in law, but here we find a situation where blatant violations of what is clearly outlawed are taking place,” women rights activist Daisy Amdany says.

A nation is once again at a cross roads of fear, suspicion and division. Institutions have grown weak, porous and susceptible. Nationhood has never been more threatened, and for the first time since independence, talk of secession has captured national psyche and attention.

And the most tragic thing is that everyone seems to be taking it all lying down. There’s no palpable national discourse on where we went wrong as a people. The train is hurtling to the next station, rudderless, directionless and mindless.

“On the contrary, we have done very well as a country despite a number of challenges. Implementation of such a broad-based Constitution as ours is never a walk in the park. In our self-loath and sometimes cynical outlook, it is easy to forget that things could have been much worse,” President Uhuru Kenyatta’s advisor on Constitutional affairs Abdikadir Mohamed says.

Only by imagining a failed Constitutional process in 2010, he says, can we begin to appreciate where we have come as a people and to appreciate the exponential growth across all pillars of our society.

For Constitutional law scholar and chair of the Bomas Constitutional Conference of 2004, Prof Yash Pal Ghai, the Jubilee administration has led from the front in violating the tenets of the Constitution and making a mockery of all that it stands for.

“President Kenyatta has committed several grievous violations of the Constitution. On the one hand he grossly exceeded his powers — I have pointed this out several times in my newspaper and scholarly articles — on the other, he has grievously ignored his Constitutional obligations, such as protection of human rights, promotion of national unity, respect of the rule of law and obstructing devolution. When the President does not respect the Constitution, its implementation is exceedingly difficult,” Ghai says.

Sunday Standard takes a look at the promise of a new Kenya heralded by the new law that August morning and where we are as a country in fulfilling them.

1. Nation building and cohesion

The promise of the 2010 Constitution as espoused in the preamble was to build a country proud of its “ethnic, cultural and religious diversity determined to live in peace and unity as one indivisible sovereign nation.” The national values of patriotism, national unity, social justice and democracy, rule of law, non-discrimination, good governance and integrity in leadership were supposed to be entrenched in implementation of public policy decisions and in enacting, applying or interpreting any law, including the Constitution itself.

After two highly divisive elections in 2013 and 2017, half the country is pulling in a different direction as the other half trudges to another. There is no clear or credible effort from whichever quarters to stop this disparate pull. National democratic processes have retained the same ethnic and regional appeals and tend to leave the country more wounded.

There is more talk of right to self-determination than there is of how Kenyan communities can cohere together.

2. Leadership and integrity

Selfless, accountable, impartial and honest leadership was the hallmark of the Constitution. It placed a high demand of “personal integrity” of Kenyan leaders, meaning they ought to be beyond reproach. Their selection ought to be on basis of not just integrity but also competence and suitability “in a free and fair elections.”

Very little can be said of this promise as both sets of current political leadership – in government and opposition – are clearly reproachable. The courts appeared to have sanctioned the free-fall from this threshold in early 2013 when they placed integrity provisions at the mercy of Bill of Rights and fundamental freedoms.

Despite sacking a whole deputy Chief Justice on account of alleged slight on the lowly of our society in 2013, nobody – including the very Judiciary which set that threshold only to lower it in a month – talks of integrity any more. In Kenya, integrity is a building in Kilimani.

3. Strengthening of institutions and rule of law

Under the Constitution, institutions exercising sovereign power of the people were supposed to exercise that power in accordance to the Constitution and principles of public service. All institutions were required to serve all Kenyans equally regardless of their political affiliation, ethnic identity, religion and so forth.

The Constitution demanded high standards of professional ethics in public service, equitable provision of services, involvement of the people in policy formulation, accountability and transparency for administrative acts, merit and fair competition in public appointments and representation of Kenya’s diverse community.

A state-sanctioned audit of parastatals in 2014 revealed such a massive rot in their leadership and governance. Public service appointments continue to be on the basis of political affiliation and reward mechanism other than merit, competence and skills.

Highly visible institutions such as the Cabinet are dominated to a large extent by two ethnic groups. Other important institutions, including once vibrant independent commissions, appear to have lost the luster of yesteryears.

4. Gender balance in appointive and elective bodies

Drafters of the 2010 Constitution put in a very lofty clause which meant to redeem the Kenyan women from the yoke of under-representation in public affairs. The Constitution required the State to take legislative and other measures to implement the principle that “not more than two thirds of the members of elective or appointive bodies shall be of the same gender.”

In 2012, the Supreme Court, when called upon to advice on the principle, declared it a progressive affair which also had a deadline of August 27, 2015. In those five years, everyone who had a role in this either dithered or showed unwillingness to actualise it. Several court cases were filed and an extension of the deadline effected. Earlier this year, Justice John Mativo gave Parliament 60 days to pass legislation enabling achievement of this principle or risk dissolution.

“They never did it and neither did Judiciary enforce its own order on the same. Right now, they are reconvening an unConstitutional assembly with this order hanging on their heads. It’s all about impunity,” Amdany says.

5. Political party culture

The 2010 Constitution only accommodates political parties that have a “national character” which promotes “national unity” and which abides by democratic principles of good governance. It requires parties to practice democracy “through regular, free and fair elections” within themselves.

It goes without saying that the growth of political party culture in Kenya has stalled and taken a turn for worse. None of the main political parties undertook credible internal elections before the August 8 vote. Some are manifestly founded on ethnic or regional basis and Parliament has consistently failed to recruit a substantive Registrar of Political Parties for several years.

6. New currency

Exactly seven years after Article 231(4) of the Constitution barred use of portraits of individuals on Kenyan currency, the country is yet to implement the requirement. Just like the gender rule, the currency requirement missed the 2015 deadlines and has since been sucked in the usual Kenyan intrigues involving bureaucracy, lack of political will and incompetence of public officials involved in it. Again, there is no known sanction for these failures to implement the obvious. The Central Bank of Kenya board of governors, which formulates policy on these things, has, for some unexplained reasons, remained a one-man-board since 2015 when the terms of the previous board expired.

7. Public finance management

The Constitution provides watertight principles to manage public finance. It decrees that the public finance system shall promote an equitable society, share burden of taxation fairly, share revenue equitably between national and county governments and promote equitable development. Public money must also be used in a prudent and responsible manner.

“The burdens and benefits of the use of resources and public borrowing shall be shared equitably between present and future generations,” the Constitution says.

Opinion on the level of public debt has been divided ever since Jubilee government decided to go for big infrastructural projects. Some have described it “dizzying” while others say it’s the only way to grow. There have also been back and forth concerns on the equitable share of revenue between counties and national government.

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