Decade of 2010 Constitution: Rebirth or failed promises?

After a 20-year-struggle in which  scores of democracy and human rights activists pay the ultimate price, Kenya ushered in a new Constitution 10 years ago.

With a flourish of his pen on August 27,2010, President Mwai Kibaki changed the supreme law of the land.

Kibaki held Kenyans' dream document aloft before cheering crowds at Uhuru Park, opening a new chapter in history.

It heralded the birth of the Second Republic by overhauling the creaking political system and ushering in sweeping reforms, notably creation of a devolved governance system of 47 counties.

However, 10 years down the line, the document has been far from a panacea to Kenya's cocktail of problems, due to failures of implementation and flaws in the document itself.

The tenth anniversary of the Constitution will be marked next Thursday with questions about how it has been implemented an whether it needs amendments.

“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 releasing funds to counties, failure to enact the two-thirds gender rule and to comply with constitutional provisions on leadership.

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

The Constitution, hailed as a model in Africa, dramatically altered the socio-economic and political landscape. Devolution was to bring power and resources closer to the people.

It brought about a paradigm shift in management of government affairs by requiring parliamentary oversight of most presidential appointments and decisions.

The President's powers were significantly reduced, decisions subject to consultations with various commissions and approval by the National Assembly.

The President no longer enjoys the prerogative of simply dismissing some state officers.

However, International Center for Policy and Conflict executive director Ndung'u Wainaina says the government has failed to fully and faithfully implement reforms stipulated in the Constitution.

For instance, Wainaina says the government has disregarded implementation of the legislative, structural, political and economic reforms agreed during the 2008 Kofi Annan-led Kenya National Dialogue and Reconciliation.

“The Annan mediation of long-term issues that needed expeditious implementation would not only have addressed the root causes of the [post-election violence] crisis but also deepen and broaden democratic foundations,” he said.

Momentum is already building for yet another overhaul of the document ahead of the 2022 General Election.

The Legislature, the Judiciary and the Executive are still plagued by lapses and false starts that have frustrated the hopes of millions of Kenyans.

Nzamba Kitonga, a former member of the now- defunct Committee of Experts on Constitutional Review, supports amending the Constitution.

“We had estimated we would have an audit of the Constitution after seven years to decide whether to change it or not," he said.

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

PARLIAMENT ON THE SPOT

Parliament has been criticised for enacting unconstitutional legislation aimed at watering down the Constitution.

It is also on the spot for failing to hold the Executive to account and merely being its appendage.

The 'unholy marriage' between the Legislature and the Executive has bred grave problems for mwananchi, who has been forced to bear the yoke imposed by the Executive and Parliament.

From the controversial security laws enacted in 2014 and the tax laws last year, despite widespread protests, authorities have been accused of diluting the letter and spirit of the Constitution.

The Judiciary also has been accused of failing the independence test amid claims the State has curtailed its autonomy.

Fundamental constitutional provisions to sort out past messes, achieve gender equity, redress historical injustices and strengthen institutions remain elusive.

"It is a failed dream," analyst Felix Odhiambo said."The State has been an impediment to implementation of the Constitution."

"There is blatant disregard for independent institutions, with police brutality and killings still the order of the day," he said. The Independent Policing Authority established by the Constitution to hold the police to account is inadequately funded.

Former chairman of the Parliamentary Committee for Implementation of the Constitution Njoroge Baiya said, "Implementation has not been satisfactory because of teething challenges that erected roadblocks. The Executive must at all times be the fulcrum to offer necessary support."

However, the former Githunguri MP said Kenyans enjoy many benefits under the Constitution.

“All is not lost. The world over, citizens get opportunities to review their constitutions. Perhaps this is the moment,” he added.

OVERSIGHT

The Constitution handed the bicameral Parliament major roles and oversight of the Executive.

The Constitution also ordained that Cabinet secretaries not be MPs, a provision politicians say has increased the oversight problem.

By law, MPs have sweeping powers to reject any presidential nominee who does not meet competency and integrity thresholds.

However, MPs through parliamentary committees frequently rubber-stamp appointees, raising questions about their oversight mandate and independence.

However, in September last year the National Assembly, for the first time, rejected the appointment of former Isiolo Woman Representative Tiya Galgalo  for violating tax laws. A parliamentary committee also rejected Mwende Mwinzi's nomination as Kenya's ambassador to South Korea citing her failure to renounce her dual-citizenship.

Former Kitutu Masaba MP Timothy Bosire said Parliament has shown signs of being controlled from outside.

“Parliament is yet to assert its authority properly in the management of public affairs. When some lawmaker blindly follow instructions without looking at the greater public good, their integrity and autonomy ceases,” the ODM treasurer said.

He said the debate on the contentious Counties Revenue Formula has exposed the House's lack of independence.

“It was within the purview of senators to agree upon. However, questions have been raised about the conduct of some senators that touch on their integrity,” he said.

DEVOLUTION

The need and clamour for more resources to the counties undermines devolution.

As county governments continue to push for more funds, sharing revenue among them has become bitterly divisive and political.

For the first time, the Senate is deadlocked on settling on the formula. 

For a record 10 times, the Senate this week failed to agree on the formula after lawmakers tinkered with the original version by the Commission for the Allocation of Revenue.

"It is said that 10 years later we are talking about the same things we talked about during the first anniversary. Devolution has always been and remains under threat," Council of Governors chairman Wycliffe Oparanya said.

The Kakamega governor said delayed disbursement of funds to the counties and the failure to allocate money held by the national government are problems.

The national government just doesn't want to cede power, critics say. It has been accused of holding onto as many as 12 devolved functions.

The standoff saw the State arrest three senators, the faces of opposition to a formula said to be backed by the government. 

The arrests and detention of senators Cleopas Malala (Kakamega), Steve Lelegwe (Samburu) and Christopher Lang'at (Bomet), triggered a national uproar. Senators alleged intimidation and harassment.

Narok Senator Ledama Olekina, a proponent of a formula pushing for a win-win situation, told the Star Parliament is not yet independent.

“During the debate you could clearly see the Senate was being remote-controlled by forces from outside,” he said.

Rampant corruption in the counties is a major challenge to devolution. At least three governors have been arraigned on corruption allegations.

Prof Yash Ghai in a past article against Constitutional changes said Kenyans have realised little of the aspirations of the 2010 Constitution. "I am sorry to say that the people are in fact worse off. Why? Because politicians took over. Their agenda was different from that of the people, focusing on their own needs — which have required enormous sums of state money," he said. 

JUDICIARY

Establishment of the Judicial Service Commission was intended to make the institution independent and restore Kenyans' confidence in the judicial system.

However, there have been claims of systematic efforts to undermine the independence of the Judicially by underfunding it. The Executive at times rebukes the Judiciary.

The Supreme Court annulled the first election of President Uhuru Kenyatta in 2017 and ordered a rerun.

The Judiciary gets Sh18 billion annually but Chief Justice David Maraga maintains resources are inadequate to take justice closer to the people. He has rebuked the Executive for what he calls a deliberate attempt to starve the courts.

The refusal of President Uhuru Kenyatta to appoint 41 judges recommended by the JSC has been interpreted as one of the strong-arm tactics the Executive is using against the Judiciary.

While the President's role in appointment if judges is purely ceremonial, the Attorney General said the President would not appoint people of questionable integrity.

Maraga said Uhuru disobeyed two court orders on the appointments. He has asked the President to provide information on integrity issues.

ADDRESSING INEQUALITIES

The Constitution established independent institutions to address inequality, notably gender inequality. Ten years on, the gender inequity gap remains.

Parliament has failed to enact the two-thirds gender rule, a legal provision that would help women in appointive and elective positions.

Despite numerous attempts, Parliament is yet to approve a framework to redress gender inequity. Male legislators won't pass it.

The future is in the hands of  Maraga and the President after six petitions were filed before the CS seeking dissolution of Parliament over the failed Gender Bill.

The Gender Bill is a constitutional requirement that not more than two-thirds of  elective and appointive bodies should be of the same gender. Parliament has violated the Constitution.

Will it make any difference?