Kenya has undergone significant transformations from the pre-Independence era to the present day. These changes have encompassed shifts in leadership, population, legislation and policy, profoundly impacting the daily lives of its people.
Many of these developments have been driven by successive governments aiming to promote and protect human rights, for which they are the primary duty-bearers.
At the centre of these changes is the Constitution of Kenya 2010, which heralded a ray of hope. It promised meaningful reforms, especially in terms of governance and human rights.
However, despite the reforms introduced by the 2010 constitution, many of Kenya’s systemic issues remain unresolved because what is lacking is true constitutionalism; the consistent practice and respect of constitutional principles. This gap explains why the promise of a better Kenya is yet to be fully realised.
The constitution gave the populace hope following decades of repression, poor governance, impunity, corruption, extrajudicial killings, enforced disappearances, police brutality, discrimination, inequality, disunity, electoral-related violence, among other human rights violations. While the expectations of its proper implementation and the reaping of its fruits were high, the hope is getting dimmer by the day.
It instilled hope by giving sovereign power to the people of Kenya and proposed a new way of life through the establishment of various structures and institutions, including the devolution of resources and power, the establishment of Chapter 15 commissions, the equitable allocation of resources, the proper management of public finances, Chapter 4 on the Bill of Rights, the proper management of security and the revamped judiciary for better access to justice, among others.
Unfortunately, just as the hopes of Kenyans died after the Narc government came into power, so too are the hopes for a better Kenya fading in relation to the realisation of the 2010 constitution’s promises. Many constitutional provisions remain unfulfilled, resulting in widespread governance challenges.
High levels of corruption at the national and county levels continue to impede Kenyans from accessing essential services, thereby violating their fundamental rights, including the right to health, the right to education, right to security, right to livelihood among other rights.
Transparency International’s latest report on bribery in Kenya paints a disturbing picture of a country burdened by a widespread bribery culture that imposes what could be likened to a parallel taxation system on citizens seeking basic services.
Increasing lawlessness remains a grave concern. Kenyans have witnessed extrajudicial executions, enforced disappearances and abductions, allegedly perpetrated or tacitly condoned by the state, despite the existence of a robust legal framework, including Chapter 14 of the constitution, which exclusively focuses on national security.
Closely linked to this is the poor implementation of Article 37 of the constitution that has seen the country witness some of the worst crowd control strategies resulting in deaths, injuries and a considerable loss of property and livelihoods.
While the state and its agents continue to engage in corruption and an inability to follow the law, discrimination in appointments and provision of services has reared its ugly head in the civil service.
The country has witnessed discrimination in appointments to positions of influence in the public service with allegations of some positions being dominated by certain ethnic groups at junior, middle and senior levels, based on reports from the same agencies. All these are happening despite the existence of Article 232, which calls forthe representation of Kenya’s diverse communities in the civil service.
This goes hand in hand with the disobedience of court orders, which has since become the order of the day. There are numerous examples to cite in addition to the few enumerated above, which is a clear manifestation that the constitution is not the problem.
For us to benefit from the constitutional provisions, it is clear that we must adopt the culture of constitutionalism that calls for the adoption of the constitution as a way of life and not a document for reference.
To move Kenya forward, there is an urgent need to strengthen constitutionalism by ensuring that constitutional provisions are genuinely respected and enforced. This requires reforms in governance, accountability and the rule of law so that the spirit of the 2010 constitution translates into meaningful change in the lives of every Kenyan.
Constitutionalism will ensure that we live and practice the values espoused in the constitution, among others, upholding human rights and adherence to fundamental freedoms, integrity, transparency, democracy, participation of the people, good governance, respect for rule of law, accountability, non-discrimination, equality and sustainable development.
Assistant director at the Kenya National Commission on Human Rights
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