Are We Living By The Tenets Of The New Constitution?

Are we living by the Constitution? If living by the Constitution means that we respect, observe and promote values and principles of the Constitution, the answer is NO. No constitution is so rich in values and principles as our constitution, responding to the needs of both nation building and state building. It seeks to promote among us all an identity first and foremost as Kenyans and to promote our political unity. But it also cherishes our diversity—of language, religion, ethnicity, life styles. With this objective as well as the objective of fairness, it aims to establish an inclusive state where all citizens will enjoy equal rights and opportunities, including participation in public affairs. Social justice, both in society and state, is the fundamental theme of the constitution, for without social justice there can be no equality or social solidarity. As regards state building, the aim is to humanize the oppressive and exploitative colonial state we inherited and which successive governments have preserved and intensified—now rule no longer by coercion but by consent. A comprehensive and effective bill of human rights is central to both nation building and state building. High standards of integrity and competence in public life and state offices, and a wide measure of public participation in state affairs, are central to the re-structuring of the state. As is also the decentralization and sharing of power: ensuring self-government, efficient and responsive administration, and greater degree of democracy and accountability. The exercise of all state power must be in accordance with national values and principles, enforced by the rule of law.

Are we living by our constitution? To be very candid, for the most part, neither parliamentarians, nor the president and ministers, nor senior civil servants wanted the new constitution. Many of them had flourished under the oppressive regime of Moi, are still in the cabinet, and have shown little commitment to human rights or social justice. Constitutions are almost always imposed by the ruling class on the ruled, but by a quirk of history, Kenyans have imposed a constitution on their rulers. But—another quirk— the opponents of the constitution have been entrusted with its implementation. It was expected that they would resist its logic and provisions-- and so it has turned out, notwithstanding considerable new legislation and commissions and other institutions. I take a few examples which show that the situation as regards most constitutional values the situation has become worse since the constitution came into force.

National unity. The country has become more fragmented with ethnic divisions fuelled by the politics of retribution through the ICC and the forthcoming elections. Few politicians have the least bit of interest in policies or social mandates under the constitution. Their most potent weapon is manipulation of ethnicity, generation of fear of discrimination and oppression by Kenyans from other communities, and incitement to hatred. Their most persistent strategies revolve around ethnic alliances, which are formed and broken daily. Not many Kenyans expect fair and peaceful elections. And most are fearful that the next elections will bring more rigging and more violence than the last.

Integrity. Because of the pervasive corruption by politicians and administrators in collusion with sections of the private sector ever since independence, and the enormous loss in development and the cost in human suffering, the constitution lays great emphasis on integrity. New appointees can only be appointed if they satisfy high standards of competence and honesty, in many cases subject to the scrutiny of the National Assembly. But these requirements are often disregarded, and people who can be relied on to protect the wealthy and the influential from investigations or prosecutions are appointed over better qualified candidates. Recent authoritative studies point to the massive criminalization of the state, a dangerous liaison between politicians and drug dealers, land grabbers, gun runners, and human traffickers. The tendering process is abused to give huge contracts which produce little more than huge transfers of funds out of national revenue. The state is run on systematic violations of the law supported by wide immunity. Criminal trials of corrupt and influential people are manipulated to ensure their acquittals, and in the process laundering their loot. Kenyans are saddened but not surprised at the country’s rating among the most corrupt sates in the world. 

Human rights and administration. Despite a wonderful bill of rights, violations of human rights of ordinary Kenyans continue. People are evicted from areas where they (and indeed their ancestors) have lived for years; from land which they have brought under cultivation or other productive uses from the bush—in the most appalling circumstances, as if to cause maximum suffering. The law has failed miserably to protect their rights. Some minorities still find it hard to get ID cards or passports despite judicial decisions in support of their rights. Those whom the state does not like, mostly the poor people, are picked up their peaceful meetings, held in custody for days, and then released without charge—and without any compensation for breach of their rights. Groups exercising their democratic rights of association, assembly and expression are proscribed, often under repressive colonial laws. Extra-judicial killings by police are routine; there is no accountability. Judgments against the state for torture and other violations of their rights are hard to enforce. 

Social justice. By consitutionalising social and economic rights, the constitution seeks to ensure all Kenyans the basic necessities of life—shelter, food, education, sanitation, medical services, so even the poor can live a life in dignity. But every year the percentage of people who live below the poverty level goes up. Large numbers of children have no access to education, and whole communities have no access to water or medical services. The recent acceleration in land grabbing (often involving senior or past politicians or business people with the connivance of the administration) leads to the expulsion and dispersal of entire communities. The disparities of income, wealth and opportunities between the rich and poor have become huge, obscene.

I do not mean to say that the constitution has been entirely useless, ineffective. Considerable progress has been made in the judiciary, in terms of competence and commitment to due process and justice. Already a number of very positive decisions based on the values of the constitution have been given. But the lack of progress in other aspects of state policies and practices imposes a great burden on the judiciary. Judges discharge their functions best when the state respects the rule of law and is committed to the protection of the rights of citizens—alas not here. It is too early to assess the performance of new commissions—but the politicians’ urge to interfere is manifested frequently. Credit must go to the Commission for the Implementation of the Constitution, which has introduced some discipline in the making of policies and the drafting of legislation—and greatly facilitated the participation of the public in these processes, as envisaged by the constitution.

There is also a basis for optimism in the enthusiasm with which Kenyans welcomed and endorsed the constitution. The sovereignty of the people proclaimed by the constitution has been translated into several ways in which the people can take responsibility for the implementation and enforcement of the constitution. Given the resistance to implementation offered by certain powerful groups, the success of the constitution depends on the people’s willingness and ability to take major responsibility to protect and safeguard it. There are indications that under the great hardship suffered by many communities, they will free themselves from the spell of tribalism, build solidarities across ethnicity and counties, and pursue policies of inclusion and justice. But it is also clear that we have to wait until the next elections before the real promise of the constitution might begin to be realized.

Ghai made this presentation to the Kenya National Dialogue and Reconciliation Conference in Nairobi on Monday.