Constitution requires us to be more proactive

In Summary

• Constitution requires us to be more proactive

• They have an obligation to participate in their own governance. This is what self-rule implies

Over the past few weeks, Kenyans have been inundated with reports of scandal after scandal involving the theft of billions of shillings in public money.

Though the government has declared war on corruption and vowed to bring those responsible to book, it seems helpless to stop the menace. On the contrary, much of the looting is actually attributed to members of the administration, including people at the highest levels.

This has understandably led to outrage, even despair, among ordinary Kenyans. This is not how things were supposed to turn out. The enactment of a new Constitution, the product of nearly a quarter century of struggle, was meant to inaugurate a new era of accountability and the end of impunity. However, it seems that we have missed a trick.

Kenyans have tended to view the Constitution as a self-implementing construct. The governance structure it creates, the institutions and offices it establishes, are expected to automatically behave in accordance with its rules and expectations, delivering the expected outcome without much participation from the public, whose role is only to input representatives into the system.

The Constitution, in this view, is an algorithm for governance and as long as we elect the right individuals into office, we can go about our lives in peace and experience prosperity without giving politics a second thought. This is why much of the current debate on amending the Constitution has focused on representation (or over-representation as some see it).

Yet the Constitution requires much more of Kenyans. Abraham Lincoln, the 16th president of the United States, famously defined democracy as “government of the people, by the people, for the people”. This suggests that people should not merely get to regularly elect monarchs or authoritarians to lord over them; rather they have an obligation to participate in their own governance. This is what self-rule implies.

Kenyans view the Constitution as a self- implementing construct and their role being to only input leaders

This participation is not restricted to casting a ballot once every five years but should involve effective and tangible contributions to the decisions made in the years in-between elections which impact their everyday lives.

It includes holding office holders to account, and using both online and offline forums to both participate in debates over policy options and pressure public officials into doing their jobs. In order to effectively do this, however, citizens must have access to the necessary information with which to make decisions, much of which is collected and held by the government.

This is why the Constitution guarantees every Kenyan’s right to access the information held by the state. In 2016, Parliament passed a law, the Access to Information Act, which gives effect to this guarantee. The Act imposes obligations on government agencies and bodies to make proactive disclosures of information, including on their mandates, composition, operating procedures and even the details of commercial contracts they have entered into.

However, it recognises that this is not sufficient. It empowers citizens to demand the information they need to breathe life into the Constitution, a duty imposed by Article 3 which requires all to “respect, uphold and defend this Constitution”.

This law is one of the most potent weapons in our democracy’s arsenal, yet it is hardly utilised. The Commission on Administrative Justice (aka the Ombudsman), which is tasked with overseeing and enforcing the Act, reports that under 3,000 requests for information have been made.

A good example of how that impedes accountability is afforded by the fact that three months after President Uhuru Kenyatta promised to make public the contracts for the Standard Gauge Railway, the Ombudsman is unaware of any requests from either citizens or media under the Act.

If Kenyans are serious about eliminating corruption, they must be ready to use all the tools the Constitution affords them to do so. Sitting back and waiting for the Director of Public Prosecutions, the Directorate of Criminal Investigations or the Ethics and Anti-Corruption Commission to do it without our participation in pressuring government agencies to be more open and accountable will only lead to further disappointment.