Fifth anniversary
Five years ago, Kenyans voted overwhelmingly for the adoption of the present constitution. It is the result of the struggle of the people for the removal of the tyrannical regime, which had ruled over them since independence after the mutilation of the 1963 constitution. Ever since the movement for a new constitution started in the 1990s, the sitting regime fought against reform — until the destruction of the Berlin Wall, when it ran out of Western godfathers. The 2010 constitution is correctly called the People’s Constitution, not only for the struggle of the people for change but also their active participation in the making of it. The constitution, therefore, represents the will and the vision of the people as the preamble recognises so clearly (a rare case of the ruled imposing a constitution on the rulers). Not surprising, the old regime resisted, and continues to resist, the spirit as well as the letter of the constitution.
Scheme of implementation
Anticipating that resistance, the CKRC built into the constitution the mechanism for its implementation — the first time that I know that a constitution has done it, at least on the scale here. In order to ensure that the scheme is properly and timely implemented an independent commission on its implementation was to be established. The special significance of the fifth anniversary is that the scheme for the implementation requires that certain action, including specified laws, must be completed by the fifth year. So seriously does the constitution take the obligations of the National Assembly to enact these laws that it provides that in case of failure, and after appropriate judicial process, the Chief Justice must dissolve the Assembly (hence the nervousness among MPs, now that there is still a backlog of Bills to be passed by the 27th). It is also possible for any person to go to court to get such an order if a specified law is not passed by the court’s deadline.
Respecting and observing the constitution
The fifth anniversary is not the end of implementation and observance of the constitution (even if the MPs do not give themselves more time to pass laws, which they probably will). Since the constitution prescribes continuing obligations of the government and fair, just, honest and effective administration, it sets up a number of devices to ensure conformity with its principles, goals and processes. These range from the empowerment of citizens (giving them power not only to elect their representatives but also to recall them if they fail in their obligations and a continuous engagement and participation in public affairs), to wide jurisdiction for the courts, now reformed, to ensure compliance by state institutions of their constitutional obligations.
A number of independent commissions and offices have been established to ensure that all state institutions (as well as private bodies where relevant) fulfil their legal obligations — these commissions have responsibility for the protection of human rights, the independence of the electoral process, redress of past injustices about land and fair land policies now, protection from arbitrariness of the government and public servants, integrity and honesty among state officers, proper management of state revenue and fair allocation between national and county governments, and fair recruitment of staff of state institutions ensuring their competence and fair distribution among Kenya’s different communities. Together with a reformed and strengthened judiciary, these commissions and offices constitute a key mechanism for the implementation and observance of the constitution.
Challenges of the constitution
The new constitution is different from any that we have had before – it deals not only with the structures and powers of the state, but prescribes also the purposes for which only these powers should be exercised. The ultimate aim is the creation of a different Kenya from where previous regimes led us – a new Kenya with national unity and political integration, built on the basis of a democratic state, power sharing and the rule of law, human rights and social justice, equality for women, public participation, and transparency and accountability of public institutions. The constitution seeks to establish security forces whose primary duty is to protect the rights of the people, comply with the law, respect the diversity of cultures — and firmly under civilian control. Integrity is a major constitutional value, a cure for the massive corruption that has contaminated all spheres of the public and private sectors, from the highest offices to the lowest. The scope of the constitution is by no means confined to affairs of the state: some of the objectives affect the organisation of society, such as equality for women and obligations of all (not only the state) for the promotion, protection and observance of human rights.
Resistance to the constitution
A document as radical as the our constitution is bound to upset existing ruling groups. The earlier drafts of the constitution attracted the wrath of the political and influential religious groups, of the owners of huge tracts of land, often acquired illegally, through intimidation and coercion — not only of Moi and his associates. Various attempts were made to derail the process, including rulings from the courts — banking on their malleability. Were it not for the terrible atrocities, inspired by politicians, after the 2007 elections, the CKRC/Bomas drafts would have remained buried. Even then the politicians did their best to undermine its democratic and integrity objectives — and did succeed to some extent, weakening the Bomas draft.
Politicians were not the only group who resisted the new constitution. Senior bureaucrats and officers of the armed forces had common interests with politicians. Some leading business people were not happy either — and the wealthier sections of the community were deeply disturbed by the provisions requiring the state to protect the social and economic interests of the poor. Many traditional leaders (men all) were disturbed by the implications of gender equality, arguing that they went against the traditions of their communities. Others were not happy at what they perceived as favouritism towards the Muslims.
Despite all this, the people voted for the constitution — people who were victims of the greed and brutality of the beneficiaries of previous regimes. They knew better than any group who addressed the CKRC the terrible consequences of these regimes: deprivation of their lands and livelihoods, discrimination against their communities motivated in part by politics, victims of corruption — and of regular use of violence by the state, driven in part by ethnic considerations. To crown it all, the perpetrators of these atrocities enjoyed absolute impunity.
Resistance to implementation
As we end the fifth year of the constitution, by which all of the constitution should be in place, upheld by the President, legislators and courts, it is time to reflect on how successful we have been in achieving its objectives. One thing is clear – the ruling group bounced back, and concentrated on sabotaging the objectives of the constitution, undermining the spirit of laws and other provisions designed for their fulfilment. Corruption flourishes as never before; the armed forces are a law unto themselves; land-grabbing continues to render people homeless; tribalism pervades all spheres of life; the rich become richer, the poor poorer. Perhaps the situation is not all so uniformly depressing and heartbreaking. There must be patches of reform, redistribution, justice, participation and accountability.
Over the next few weeks, look out for the Katiba Corner as various experts review the success or otherwise of the constitution, by discussing various constitutional goals, and the processes whereby they were expected to be achieved —beginning with the empowerment of the people.
The author is a director of Katiba Institute. He participated actively in the making of what became the 2010 constitution.