10 YEARS LATER ...

Constitution review: A willing spirit in an unwilling body

With the failure to activate gender equitability in the political space and those at the Senate particularly, prove we are still toddling in espousing the constitutional halo.

In Summary

• A decade on, like a 10-year-old child, the Constitution should be firmly on its feet. But is this case?

• We are marking this season with the ongoing toxic and divisive impasse at the Senate over the basis for sharing national resources.

Kenyans in jubilation at Uhuru Park during the Promulgation of the 2010 Constitution
Kenyans in jubilation at Uhuru Park during the Promulgation of the 2010 Constitution
Image: JACK OWUOR

The fact that we are marking 10 years of the implementation of the Constitution without amendments, despite numerous attempts — Okoa Kenya, Punguza Mzigo and now BBI — is testament of the complex political accord that for one moment in August, 2010, the point tipped towards the existence of a national constitutional consensus.

This after many attempts (prominently Bomas and Wako milestones) and a long journey; Saba Saba in 1990, marking the proverbial crossing of the line on the sand.

August 2010 was a kismet moment for Kenya, fatefully the do-or-die-moment. Wananchi were alive to this and that is why, through an affirmative nod to the Proposed Constitution of Kenya  on August  4, 2010,  70 per cent of Kenyans confirmed the proposal mustered a meeting of minds and hearts of a majority, about the direction the country should take socially, economically, culturally, and politically.

 

Through infusion of democratic principles such as separation of powers, justice, participatory, open and transparent governance that respects human rights, Kenyans sought to create a more robust republic that protected the rights of minorities. The 30 per cent that did not support the proposed direction, and those that would in the future find themselves in the minority, would be included and protected.

Kenyans rehabilitated their previous dispensation because they were hopeful that through devolution, accountable leadership and institutions, both public and private, their well being would progressively improve.

For the so-called ordinary mwananchi, the new Constitution was a vision towards better healthcare, education and infrastructure. It was the promise towards clean and safe drinking water, dignifying jobs and the escape route away from hunger. Therefore beyond the technically rendered concepts in the Constitution, for the ordinary Kenyan, a better life was the yardstick for the success of the new law. 2010 going forward was to many Kenyans, the moment when the Constitution opened the doors towards making ‘eat’; it was finally the time for Wanjiku to eat!

We must pause and reflect about whether the two general and presidential elections we have conducted under this Constitution have resulted in better holistic care of our children.
BOB MKANGI

Ten years on, we must therefore primarily ask ourselves whether Wanjiku is finally eating. We must enquire whether the notable achievements such as the established functional (or dysfunctional?) 47 county governments, a comparatively more independent Judiciary and the enactment of numerous pieces of enabling legislation have added value to the lives of Kenyans – the sovereign.

We must pause and reflect about whether the two general and presidential elections we have conducted under this Constitution have resulted in better holistic care of our children. We must search our souls and objectively find an answer to the question whether the numerous independent offices and commissions have ensured Kenyans are free to move, mingle and enterprise.

It is the time to examine whether an independent Judiciary has translated to justice, a bicameral house into better representation and devolved governments into devolution. The presidential system of government at the national level must be checked against whether it has brought better services with value for money. We must ask ourselves whether the presidency has fostered national unity, one of its key functions as per the Constitution.

Intriguingly, we are marking 10 years, somehow having interrogated these issues, arriving at the conclusion that we need to pull up our socks, but unfortunately projecting blame - the document must be the problem. Ten years on, it is our claim that the Constitution has failed in stopping us from being sexist, tribal and corrupt. We are blaming it for failing to organise free and fair elections and ensuring public goods are equitably distributed.

 

A decade on, like a 10-year-old child, the Constitution should be firmly on its feet. But is this case?

We are marking this season with the ongoing toxic and divisive impasse at the Senate over the basis for sharing national resources. We blame the Constitution for failing to firmly compelling us to obey court orders. Ten years on, the being of the Constitution will be marked with the dark and heavy cloud of the corrupt misappropriation of Covid-19 resources hanging over us.

Ten years on, we are blaming the Constitution for failing to create a state that brings together diversity; multiple nations, genders, and languages.

The wording and phraseology in the Constitution must take the blame for not permitting a pan – African, multicultural entity that affirms, unites but transcends identities through the concepts of justice, equitability, and respect for human rights.

The goings on in Parliament, with the failure to activate gender equitability in the political space and those at the Senate particularly,  prove we are still toddling in espousing the constitutional halo.

Ten years on, as we contemplate repairing this document, we must ask ourselves whether it is us who have failed the Constitution or it is the Constitution that has failed us.

We must be ask ourselves whether in the words of the late reggae maestro Joseph Hill, whether we are on course towards creating a nation that meets the needs of all people and not the greed of a few.

Bob Mkangi is a constitutional lawyer and an independent consultant. He was a member of the Committee of Experts in 2010