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December 10, 2018

The State Is Less Powerful

Citizens have so far failed to use the constitution to theiradvantage and the current government is clawing backpower. But that is not the fault of the constitution
Citizens have so far failed to use the constitution to theiradvantage and the current government is clawing backpower. But that is not the fault of the constitution

It is rarely that I disagree with Patrick Gathara’s usually perceptive views but differ somewhat with his March 25 Star article 'What we got wrong on counties'. His considers that the new constitution did not tame the powerful state, based on colonial model. Some functions were decentralised to counties but “little thought was given to the concentration of powers in the state itself”,  being “taken for granted”. No “power was given to the people”. Gathara is wrong. State power is strictly limited and the purposes for which it can be exercised are clearly specified.

The powers of the state, at both levels, have been significantly limited by the comprehensive Bill of Rights. Any policies or acts that contravene the rights and freedoms of people are invalid. The cnstitution also requires the government to provide the basic necessities of life, including healthcare, education, water, sanitation, housing, food, and social security. It must provide affirmative action, for children, women, people with disability and marginalised communities. It must protect the environment.

Government officials have to treat people with respect. Most critically, and as a departure from colonial law and practice, the policy and army must preserve people’s rights, freedoms, property and security; respect the rule of law, democracy, and the diversity of cultural communities. Contrary to what Gathara says, the state cannot subjugate the “church” (by which I take it he means not only Christianity); the constitution says that there shall be no state religion, while protecting the rights of all religious groups, to “worship, practice, teaching or observance”.

Gathara dismisses the value of devolution. A key objective of devolution is to empower local communities, particularly those who were victimised by Kenyatta and Moi, and leave decision to local leadership. To a considerable extent this has been achieved. State power has been shared not only with counties, but also with independent commissions and offices. The judiciary has a particularly important role in ensuring that all state institutions  do not go beyond their constitutional powers, and perform their constitutional and legal obligations. For example, all executive authority, including presidential, must be exercised in accordance with the constitution. Otherwise the courts can declare their conduct illegal and invalid, as they have done not infrequently. All judges in office on the enactment of the constitution have been vetted for integrity and competence. The result is not perfect — but an improvement.

Nor is it correct to say people have not been empowered. People can decline to re-elect their “leaders” regularly, thought the power to recall them was emasculated by Parliament. People can participate in legislative and executive decision making, promote legislation and even initiate constitutional amendment. Civil society enjoys considerable autonomy, grounded firmly in the Bill of Rights. It is not the fault of the constitution if some media exercise self-censorship, the constitution protects media freedom, and the courts have declared some legislation invalid.   

Gathara is of course right when he implies that the constitution has made disappointingly little difference to ordinary Kenyans; that bad habits, particularly corruption, continue unabated — and with that the struggle to capture the state. As Marx might have said, a constitution does not have legs and arms; it must be mobilised by citizens. Weighed down by poverty, citizens have so far failed to use the constitution to their advantage. Kibaki had a great opportunity to change the course of politics, but blew it, reneging his agreement with Odinga and having to rely on Moi for support of Kanu MPs, thus abandoning the reform agenda. Meanwhile, President Uhuru Kenyatta is clawing back the power that this father enjoyed, in disregard of the constitution. No fault of the constitution!

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