Kenya marks nine years of new Constitution

Exactly nine years ago, with a single stroke of the pen President Mwaki Kibaki changed Kenya forever when he promulgated the 2010 Constitution.

The historic Uhuru Park grounds had virtually been filled to the brim. Boisterous crowds were exuberant, united and teaming with hope for the grand moment expected to herald the rebirth of a new Kenya.

However, Kenya marks the ninth anniversary of the Constitution today amid lingering questions as to whether it has been implemented fully.

“We have not been faithful, leave alone implementing the letter but the spirit of the Constitution,” former Constitution Implementation Commission member Kamotho Waiganjo told the Star.

Waiganjo cited delays in the release of funds to counties, failure to enact the two-thirds gender rule and to comply with the provisions on leadership and integrity as testimonies to poor implementation of the supreme law.

“We need to go back and ask ourselves why we changed the Constitution in 2010 and take stock if we have been able to achieve inclusion, equity and empowerment,” he said.

The criticism of failed implementation comes amid a clamour for a referendum to change the Constitution.

Supporters argue the first Kenyan Constitution was amended 23 times; the American Constitution amended 27 times and the Indian Constitution reviewed eight times.

With opinion divided about amendments to correct perceived weaknesses, the referendum wave continues to sweep the country.

Yesterday, Nzamba Kitonga, a former member of the defunct Committee of Experts on Constitutional Review, backed the agitation to amend the document.

“Actually, we had estimated that we would have an audit of the Constitution after seven years to decide whether to change it or remain with it as it is,” he said.

Kitonga said the current structure of the three arms of government — the Executive, Legislature and Judiciary — need slight adjustments to address political inclusivity and negative ethnicity, reduce the public wage bill and make the judicial system more effective.

The constitutional law expert explained that much of the clamour for constitutional change revolves around most of the issues that were contained in the Harmonised Draft Constitution.

"The provisions of the Constitution that were expunged at Naivasha by politicians were included in the harmonised law for a purpose and not for cosmetics,” he said.

He noted that the Constitution is generally good and progressive, but it has certain gaps which need to be improved to make it ideal for Kenya.

Kitonga, however, lamented that the incessant supremacy wars pitting the Senate and the National Assembly have clawed back the gains of devolution and therefore affected Constitution implementation.

"We can't have what we are seeing as an annual circus. The leadership of the country must come up with a lasting solution so as to fully implement the aspirations of Kenyans on devolution,” he said.

 Waiganjo, however, said the country's biggest priority should not be constitutional amendment but rather implementation.

Yesterday, the International Centre for Policy and Conflict warned that the country is yet to fully implement the Constitution as per its intention, purpose and objective.

“The people who were given the responsibility of implementing the Constitution were people who were historically against a new constitutional order," executive director Ndung'u Wainaina said.

He said Parliament has been enacting laws seen as undermining the Constitution.

“Our biggest problem is that we are trying to change the Constitution which we have not even implemented fully as required,” Wainaina said.

Constitutional lawyer Bobby Mkangi supported agitation to amend the Constitution saying, globally, progressive constitutions were revised early after their promulgation.

“Amending too early is nothing strange. If the philosophy is improving what we have, then any time can be the right time,” Mkangi told the Star.

He went on: “If we are amending it for the wrong reasons, then there would never be the right time.”

Mkangi, however, decried what he termed as sustained onslaught by leaders against the Constitution including undermining devolution.

The 2010 Constitution brought about major changes that dramatically altered Kenya’s socio-economic and political landscape in a manner unmatched in many democracies in Africa.

Among the new changes was the devolved system of government that has brought power and resources closer to the people.

The constitution also brought about a paradigm shift in the management of government affairs by injecting parliamentary oversight of most presidential appointments and decisions.

The powers of the President were significantly whittled down and subjected to consultations with various commissions and approval by the National Assembly.

The President no longer enjoys the unbridled prerogative of dismissing some state officers, a key departure from past practice.