• We rightly bemoan the failures of government to implement the Constitution
• However, we must realise that unless the people insist, nothing will be done
We should not rejoice and celebrate the 10th anniversary of the Constitution with great enthusiasm. We have no reason to believe it will now generate better results than in the last 10 years, given the hands into which it has fallen.
In that period, the conditions of citizens have gotten worse. There is an increased gap between the rich and the poor. Some tribes have indeed done better but at the expense of others.
While paying attention to Kenya’s Constitution on its 10th anniversary, we must not ignore the question of implementation. Its values and objectives have been implemented only in small measure and already, there are plans by our political masters to erode it further, most aggressively by Raila Odinga.
Raila could genuinely claim credit for being a key architect of the Bomas Constitution, which in due course, and with major changes, became the present Constitution. His BBI is now on course to further weaken the Constitution that he supported. So the major task for us is not so much celebrating the Constitution as protecting it, and ensuring its values and structures are geared towards its implementation.
Therefore, we must remind ourselves of its values and principles, as stated clearly and succinctly in the Preamble and Article 10. Kenyans have been denied the fundamental principle of the Constitution that, “All sovereign power belongs to the people of Kenya and shall be exercised only in accordance with this Constitution. [They] may exercise their power either directly or through their democratically elected representatives.”
However, ethnically oriented politicians have seized the control of the Constitution, and denied citizens their entitlements by changing the nature of Kenya as “one and indivisible sovereign nation”. They have reduced it to a multiplicity of tribes, which effectively gives dominance to five well known tribes, affecting negatively the rights of numerous communities.
Article 10, referring to the values and principles of governance, includes rule of law, democracy, participation of people, equity, social justice, inclusiveness, equality, protection of the marginalised — and national unity, from which all citizens benefit.
Under Article 21, the State must address the needs of vulnerable groups, of people of all ages and communities: ethnic, religious and cultural. Some of the key matters are the right to life, equality and freedom from discrimination, gender equality, race or sex, ensuring the dignity of all persons. This is something the government has not cared about. Through its policies, it has instead committed all these offences.
Of particular relevance is Art. 43 (“Economic and social rights”). These include that the State must ensure social security to persons who cannot support themselves and their dependants (the pandemic has shown how weak or non-existent our system is). The Constitution provides for special rights of children, persons with disabilities, youth, minorities and marginalised groups, and older members. However, there have been enormous violations of human rights by the State.
HUMAN RIGHTS VIOLATIONS
The Constitution states that human rights are an “integral part of the Kenya’s democratic state and the framework for social, economic and cultural policies”. Governments since the adoption of the Constitution have constantly and extensively violated the Constitution and other laws.
There are a various studies of violations of human rights, but many of them have not been read by the public or the relevant departments of government. There is little prospect of the protection of human rights if the President is involved so often in violations. Dr Nicholas Orago, law teacher at University of Nairobi, says in a scholarly study that, “Economic and social rights are perhaps the most revolutionary aspects of the Constitution.”
He says the housing of the poor has not improved after almost 10 years of the entrenchment of the right to housing, and their informal settlements are of “low quality housing, overcrowding, poor infrastructural and basic services and insecurity as a critical challenge to housing”.
Similarly, “Kenya’s food security situation has deteriorated over the years” and “Food quality and safety remain a major concern”. It does not seem that the people have done better for food than when the Constitution was enacted.
Orago says of efforts to remedy the water situation, especially through 100 dam projects, “[H]ave largely failed to materialise due to corruption. Despite these efforts, most Kenyans, especially in rural areas and informal settlements, still lack access to safe drinking water and sanitation services. Budgetary allocation for the provision of clean and safe water in adequate quantities is still very low, contrary to Art 20 (5) (b) that requires decision makers to prioritise the widest possible enjoyment of the relevant rights”.
Education is an important but complex matter, and the “supposedly competence-based curriculum … has not addressed the basic infrastructural challenges of the previous system, such as the low teacher-learners ratio, the lack of school infrastructure, low motivation among teachers, poor and industrial relations between the teachers and their employer as well as the direct and indirect costs of education to poor households, etc. These have to be addressed if the Constitution’s vision of quality education is to be realised”.
The Constitution envisaged a radically changed security environment. Instead, the services intended to keep Kenyans safe have been violators of security rights.
Police take instructions from the government regardless of the purpose and despite the intention to have police with more autonomy, professionalism and respect for human rights. We constantly see huge number of killings by the police, even of kids in slum areas, with almost total impunity. Women and girls are particularly vulnerable, including being raped, and suffer particularly badly from the police.
Media journalists are threatened by the government when they try to report its unfair deeds. People who ask the police about the arrested are arrested themselves; a person who was questioning the police about the killing of a friend was killed himself. We see harsh treatment of minorities, pastoral communities, in violation of the constitutional principles of equity and equality.
THREATS TO OTHER RIGHTS, INSTITUTIONS
Vital rights like freedom of expression (not just because of the individual but because of the necessity for any society that wants to progress for its people to be able to scrutinise it, its government and institutions) are under threat. Harassing the media,bloggers and other citizen journalists, is an example. A fear of new ideas, as well as a desire to control, account for things like “Rafiki”, the film banned here but much praised elsewhere.
Civil society is threatened, including by bodies like the NGO Coordination Board, even if not subject to its jurisdiction (like Katiba Institute).
The right to vote is made nonsense of by the shambles (and worse, deliberate manipulation) of elections, and the violence associated with elections.
And our right to fair trial – and to a system of justice that is independent, accessible and competent – are undermined by the reluctance of the public sector to accept the role of the courts, to obey their orders, and to fund and staff the system properly.
Government reaction to the judiciary serve to undermine it, the willingness of good lawyers to become judges, and public confidence in the system. Imagine a Supreme Court being threatened by the government — by the President himself, no less!
From the above, we learn about the nature of the political and ethnic groups who seek to break up the unity of Kenyans. They undermine the balance between state and people. It is up to Kenyans to fight for the recovery of the rights conferred on them by the Constitution.
We must fight to fully implement the Constitution. Achieving this is now the responsibility of civil society in conjunction with other citizens who are committed to the values of the Constitution, which all Kenyans committed themselves to on its adoption 10 years ago — and earlier, in Bomas. The challenge to us is how we go about the task.
The implementing of the Constitution is now dominated by politicians for their own benefit. Most of them have little respect for its values and injunctions and are constantly focused on how to capture the state. To do this, they have invoked tribal politics, which is clearly forbidden in the Constitution. In the process, people have lost several entitlements granted to them under the Constitution and what they need has become irrelevant to the government.
So what do we need? We need to understand well what is actually happening – not just anecdote. Thorough research must form the basis of our complaints and campaigns.
People need to understand more fully and clearly the contents of the Constitution and how it is the responsibility of all citizens to respect its values and objectives. There are bodies working on this, including the grassroots-based Social Justice Centres, which are of particular relevance in reaching the citizens.
We rightly bemoan the failures of government to implement the Constitution, but we must realise that unless the people insist, nothing will be done.
Civil society must not scorn politics, it is not for “them”, but must be for us. And it is not just a matter of voting occasionally (and taking kitu kidogo to do so). Maybe a civil society movement should start a political party cutting across tribes, religions, etc., in the spirit of the Constitution. And voters and supporters must ensure that such a party is not captured by the system.
Maybe we do not have to be so pessimistic as my first paragraph.