Kenyans clamoured for a governance model anchored on our Constitution after experiencing torturous and rogue administrations. Abuse of office and power was ubiquitous under under Presidents Kenyatta and Moi.
Many Kenyans disappeared without trace. The murders of the likes of Pio Gama Pinto, JM Kariuki, Christopher Mbae, Tom Mboya and Dr Ouko remain unresolved. Until recently, extrajudicial killings and forced disappearances have been rife.
Now, we have a Constitution that was promulgated in 2010. The law has made it difficult for the political class to entertain the 'elite model' of policymaking, institutions reforms and formations that will push for changes to the Constitution for personal gain.
There have been more than 28 attempts by the political class to change the Constitution but all failed because it protects itself.
Some of the new county bosses are in a fix. The Constitution is protecting itself against contraventions, abuse of office and power, gross violation of the statutory laws and above all, autocratic tendencies to usurp power that doesn’t belong to them. There is a reason why the drafter of this constitutions have put mechanism, process and procedures, checks and balances, what Governors can do and what they can’t in place.
Under the 2010 Constitution, no one can claim absolute power. One must always remember compliance is the fulcrum of this Constitution, no one can deal with it willy-nilly.
The appellate court reaffirmed that the basic structure of the Constitution can only be altered through the primary constituent power, which must include four sequential processes, namely: Civic education, public participation and collation of views, constituent assembly debate, and ultimately, a referendum.
The Building Bridges Initiative (BBI)-sponsored Constitution (Amendment) Bill, 2020 was termed irregular, unconstitutional, null and void. More recently, in the National Government Constituency Development Case (2022), the Supreme Court held that it is unconstitutional to allocate funds to the CDF before the division of revenue between the national and county governments.
And that is why some counties have cases at the High Court over employment and labour. Meru Governor Kawira Mwangaza is facing impeachment after she fell out with MCAs over ward development fund.
The Employment and Labour Relations court at Milimani has stopped the appointment of county chief officers in Mandera after the advert indicated 28 positions but Governor Mohamed Adan nominated 33.
A number of governors are facing employment-related court cases over compliance with the Constitution and other statutory laws.
In the BBI judgment, judges reaffirmed that the President does not have authority under the Constitution to initiate changes to the Constitution. A constitutional amendment can only be initiated by Parliament through a parliamentary initiative under Article 256 or through a popular initiative under Article 257 of the Constitution. This is a clear warning to all politicians.
The courts further stated that county assemblies and Parliament cannot, as part of their constitutional mandate, change the contents of a Constitution of Kenya (Amendment) Bill initiated through a popular initiative under Article 257.
This is a clear indication, regardless of your position of leadership in this country, no one can claim the usurpation of the people’s exercise of sovereign power.
Governors and other leaders should comply with the 2010 Constitution and statutory laws and stop cherry picking what works for them and what they think they can get away with.
Governance and policy analyst based in Mandera county. [email protected]
