•The political leadership isn’t prepared to address inequality as anticipated by the CoK 2010.
•To realise the original intent of CoK 2010, the current and future political leadership must allow its full implementation.
Last week, in a majority judgment, the Court of Appeal upheld the decision of the High Court that invalidated the Constitution of Kenya (Amendment) Bill 2020 three months ago.
The appellate court affirmed virtually all the findings of the High Court including the unconstitutionality of the BBI process.
Similarly, the majority of the judges agreed with the High Court that basic structure doctrine is applicable in Kenyan jurisprudence and that it limits the provisions of articles 255, 256 and 257 of the Constitution of Kenya.
With the BBI process now stopped, it’s imperative to implement the 2010 Constitution fully as it is to realise its novel intent.
Shortly after the promulgation of the CoK 2010, billed as one of the most progressive in the world, the political elite crafted various strategies that prevented its full implementation.
Thanks to the egregious contravention of the rule of law by the political leadership, the CoK 2010 has fallen short of its vision in four areas.
Chapter 13 addresses the question of gender equity in public service.
Article 232 (i) affords adequate and equal opportunities for appointments, training and advancement at all levels of public service, at all state organs in both levels of government and state corporations.
Despite this clear prescription by the Constitution, there is still a significant gender imbalance in most levels of Kenya’s public service.
“While the country is rich in gender-related and legislative frameworks, including the 1974-1978 Development plan the National Food Policy (1981), the Population Policy (1984) and the National Policy on Gender Development (2000), compared to its neighbours Tanzania and Uganda, Kenya remains the least responsive to gender issues,” Justice Jackline Oduol wrote in 2015.
Article 10 speaks to the question of national values and principles of governance, including equity, justice, and inclusiveness.
None of these have been implemented; Kenya is still deeply unequal, proudly unjust and inclusively exclusive.
The following public offices are headed by individuals from the same ethnic group: National Intelligence Service, Speaker of the National Assembly, Central Bank of Kenya Governor, Attorney General.
Others are National Assembly Majority Leader, Senate Chief Whip, Chief of Kenya Defense Forces, Public Service Commission, Auditor General, Kenya Revenue Authority and Teachers Service Commission.
Chapter 12 under public finance introduced Article 215 that established the Commission on Revenue Allocation whose functions, among others, is to make recommendations concerning the basis for the equitable sharing of the revenue raised by the national and county governments and among the county governments.
Last year, Senators were embroiled in a protracted debate about what formula should be used in the distribution of revenue.
The contention was whether the Senate should adopt the one-man-one-shilling formula – pushed by Senators opposed to the government agenda – or the one-man-one-vote-one-shilling formula – also known as the third basis formula, and the position of the government.
After weeks of drama, intimidation and arrests, the Senators could not agree on a formula that the CoK 2010 intended.
The revised third basis formula that was eventually passed by the Senate meant some historically marginalised counties like Wajir, Garissa and Kilifi received fewer funds than they did in the previous financial year.
The political leadership isn’t prepared to address inequality as anticipated by the CoK 2010.
Devolved government under Chapter 11 was introduced to de-centralise power and improve service delivery.
Whether it has achieved this function is open to question. It is true that devolution might have brought power closer to the people, but has that power been used for the benefit of the people? Has service delivery improved?
In the process of trying to devolve political power and government services, the Kenyan state ended up devolving corruption.
While some counties like Makueni and Kakamega have done relatively well in service delivery and sustainable development, most of the counties have mismanaged resources, institutionalised corruption, and generally underperformed.
By the start of 2019, Director of Public Prosecution George Kinoti had opened investigations in at least 14 counties over allegations of misappropriation of public resources and abuse of office.
To realise the original intent of CoK 2010, the current and future political leadership must allow its full implementation.
The glory of any constitution lies in its full implementation.
Edited by Kiilu Damaris