CONSTITUTION REVIEW

Hits and misses of 2010 Constitution 10 years later

It has been a remarkable journey, with ups and downs as the nation strives to implement and live by the tenets of the new supreme law

In Summary

• The Constitution envisaged a system where the sanctity of "one-man-one-vote" dictum would suffice, with a robust IEBC fully taking charge of its mandate.

• However, events in the last two general elections paint to a totally different picture, with the commission making a series of blunders that completely eroded its credibility.

VP Kalonzo Musyoka, President Mwai Kibaki and PM Raila Odinga after the passing of the proposed new constitution at the KICC in 2010
VP Kalonzo Musyoka, President Mwai Kibaki and PM Raila Odinga after the passing of the proposed new constitution at the KICC in 2010
Image: JACK OWUOR

We are celebrating a decade since the 2010 Constitution was promulgated. It has been a remarkable journey, with ups and downs as the nation strives to implement and live by the tenets of the all-important document.

Since our Constitution is such a wide document, I will only limit my observations to the following areas: Devolution, judicial and police reforms, electoral reforms, health and youth unemployment.

Concerning the gains from devolution, I am happy to see the massive transformation that has taken place in most rural areas of Kenya as a result of devolved funds, leading to a much better quality of live for more Kenyans than during the pre-2010 Construction era.

 

In fact, in some counties such as Mandera and Wajir, the devolution changes can almost be termed as magical, with these counties bragging about their first inches of tarmac roads since 1963!

However, it is sad to note that massive corruption continues to dog most of our counties, with some governors being the major culprits. Already, Kiambu's Ferdinand Waititu has been impeached, while a few other county chiefs could be facing a similar fate. In addition, several governors have been arraigned on corruption charges.

As I look forward to a quick, just and efficient dispensation of justice, where culprits will not only be punished but also forced to refund the misused funds, I, too, call upon governors and other managers to exercise prudence and high ethical rectitude in the management of county affairs. Misuse of public funds should be met with tough punishment to deter greedy governors and officers from looting the public till dry.

JUDICIAL REFORMS 

Concerning the judicial reforms, I note with appreciation that the Judiciary has become more open, accountable and transparent. Moreover, more judges and magistrates have been employed, leading to speedier delivery of judgements.

However, the downside is that, despite the cleanup of the Judiciary by the Judges and Magistrates Vetting Board  — which folded up its operations in 2016 —, it is sad to observe that corruption has crept back to the corridors of justice, if the numbers of public complaints against judicial officers are anything to go by.

To fight corruption within the corridors of justice, I urge my friend, Chief Justice David Maraga, to devise a system that will make judicial officers more accountable and punish the errant ones.

If self regulation fails, regular vetting sessions, perhaps after every five years, can be held by institutions independent of the Judiciary. This will help keep the judicial officers on their toes.

 

As an additional measure to speed up the dispensation of justice, the Judiciary may think of setting up mediation courts/tribunals that encourage the use of mediation instead of the adversarial litigant-defendant judicial method.

Needless to say, the financial allocation to the Judiciary is clearly not enough to enable it perform its functions efficiently.

There is no reason why, for example, the Parliamentary Service Commission with a combined staff rate of around 1,500, should be allocated Sh40 billion, which is double the amount given to the Judicial Service Commission, with a staff population of more than 7,000. Clearly, this mismatch needs to be looked into and rectified.

ELECTORAL AND POLICE REFORMS

On electoral Justice, the 2010 Constitution envisaged a system where the sanctity of "one-man-one-vote" dictum would suffice, with a robust Independent Electoral and Boundaries Commission fully taking charge of its mandate.

However, events in the last two general elections paint to a totally different picture, with the commission making a series of blunders that completely eroded its credibility.

It is almost a foregone conclusion that the IEBC should be reconstituted, with commissioners preferably being appointed by political parties based on their parliamentary strength.

Concerning police reforms, it has been observed that, for a long time, the Kenya Police had earned notoriety for its high-handedness. The 2010 Constitution sought to cure this mess by making it more friendly through reforms to make the service more people-centred.

However, despite the efforts to reforms it, there are still many bad apples within its rank and file who mete out untold cruelty to wananchi, hence giving the police a bad name.

I propose an ethics curriculum for anybody joining the National Police Service for a change of the mindset of the officer. The stalled vetting  of officers should be revived to weed out the bad ones from the service.

More funding is needed to better remunerate hardworking police officers to motivate them to continue serving Kenyans.

HEALTH

The advent of devolution saw health being a devolved function. More hospitals and health centres have been built, and even more medics employed.

However, the devolution of health did not see an equivalent devolution of funding from the National Treasury, leading to a situation where many counties are crying over lack of adequate funding to buy drugs, equipment, and pay staff.

A situation obtains whereby over 80 per cent of the Health budget is still held at Afya House, while services have been devolved. The offshoot of this lopsided state of affairs has been the frequent strikes by medical staff, causing suffering to Kenyans in dire need of health services.

The Covid-19 outbreak in early March only served to make matters worse for the counties and health workers, with the situation being grossly affected by rampant corruption at Afya House and at the Kenya Medical Supplies Agency.

To rectify this state of affairs, the National Treasury must ensure the Health function is funded to the fullest.

Equally, the Covid-19 funds should be equitably shared among all counties. The officers at Afya House and Kemsa fingered for stealing Covid-19 funds must be investigated and, if found culpable, be made to pay for their sins.

Chapter Four of the Constitution deals with the Bill of Rights, among which is right to decent life.

UNEMPLOYMENT

Youth unemployment is a powder keg that threatens the very fabric of our nation. Millions of our educated youth continue to languish in poverty due to rampant unemployment.

Despite the bleak times brought about by Covid-19, I strongly believe we all should seek a long-lasting solution to youth unemployment.

For example, for many years, our Public Service Commission had frozen employment opportunities for young graduates. It is very encouraging to learn that PSC now has an internship programme for young graduates.

I urge the PSC to consider absorbing the young men and women on permanent terms upon successful completion of Internship.

This will not only help them to earn a living but also protect the government from imminent talent deficit in service delivery that may arise owing to the ageing civil servants.

For the non-graduates, the government could consider the strengthening of vocational training and employment opportunities for those who successfully complete their courses.

I cannot conclude without touching on the hot topic of revenue allocation to the counties.

No county should lose or have its allocation reduced.

The solution to solving the current stalemate at the Senate would be to immediately increase the current allocation of the Equalisation Fund from the current 0.05 per cent to 10 per cent, and then allocate the same to the so-called "disadvantaged counties". That way, we shall have a win-win situation.

Kalonzo is the Wiper party leader and former Vice President (2008-2013)


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