KATIBA AT 10

Constitution implementation left to elite with colonial patterns of thought

Conspiring with Kenyatta to defeat the Constitution has been a retinue of politicians, public officials, judges and bureaucrats.

In Summary

• Kenyans believed Mwai Kibaki would live up to his promise to deliver a new constitution within 100 days. Instead, once in power, he seemed to conclude he liked things as they were.

• His successor, President Uhuru Kenyatta, who had declared that Kenyans did not want an imperial presidency preferred to keep things as they were after 2013

President Uhuru Kenyatta takes the oath of office as First Lady Margaret (R) holds a bible during the official swearing-in ceremony led by Chief Registrar Gladys Shollei at Kasarani Stadium in Nairobi, April 9, 2013
President Uhuru Kenyatta takes the oath of office as First Lady Margaret (R) holds a bible during the official swearing-in ceremony led by Chief Registrar Gladys Shollei at Kasarani Stadium in Nairobi, April 9, 2013
Image: REUTERS

On August 27, Kenya marked the 10th anniversary of the promulgation of its current constitution and what some at the time termed "the birth of the Second Republic" - a phrase one almost never hears today. And understandably so.

For in the last decade, the Constitution has been more honoured in breach than observance. Just a few days ago, a demonstration by a handful of citizens against the theft of funds meant for the fight against the Covid-19 pandemic has been violently dispersed by the police despite the right to stage public protests being expressly protected in the constitution. The second republic, it turns out, looks very like what it was supposed to replace.

Part of the problem with the Constitution is a feature of its design. It created a whole new, devolved, level of government — the county — but still left most of the resources in the hands of the central government.

 

Similarly, while it did bring decision-making closer to the people, the mechanisms and agencies for holding public officials to account are still based in Nairobi. As a result, the accountability that devolution was meant to ensure has turned out to be illusory.

Another, more egregious example of bad design is that the Constitution gave Kenyans the right to recall their MPs but then said those very representatives would get to decide when and how we would exercise that right. As you can imagine, that did not work out well for Kenyans.

However, by far, the main reason why the Constitution has not wrought quite the transformation that its authors had anticipated is because it remains largely unimplemented.

The political class, which it was meant to contain, have proven to be more than a match for it. From the very start, their support for genuine constitutional change had been lukewarm.

While there was overwhelming support for change among the population, political elites saw the Constitution primarily as an avenue for contesting power — those who had it resisted change and those who did not pushed for it. Thus the whole effort was constantly derailed by the changing political fortunes of the main actors whose views on the main issues were dependent on where they stood at any particular moment.

In December 2002, for example, Mwai Kibaki, a former regime loyalist and Vice President who had spent a decade in opposition after falling out with the dictatorial Daniel Moi, was elected president.

Kenyans genuinely believed that he would live up to his promise to deliver a new constitution within 100 days. Instead, once in power, and despite heading an administration that contained many of the leading lights of the push to enact a new constitution, he seemed to come to the conclusion that he liked things as they were.

 

He rejected a constitutional draft that emerged from a constitutional conference in March 2004 after months of negotiation and struggle, his inner circle orchestrated an alternative draft that was rejected by Kenyans in a referendum a year later.

His successor, President Uhuru Kenyatta, was at the time the Leader of the Opposition and declared after the referendum that Kenyans did not want an imperial presidency. Yet after he took power in 2013, and was tasked with the implementation of the 2010 Constitution, he too preferred to keep things as they were.

In the past decade, his administration has demonstrated much contempt for the Constitution. He has attempted to curtail the rights it guarantees under the guise of fighting terrorism and Covid-19threatened judges when they ruled against him; complimented the police for actions that led to the deaths of dozens of Kenyans; and undermined the devolution of powers to the counties.

Just weeks ago, the police attempted to sway the outcome of a vote in the Senate in favour of the government by arresting three senators. 

Conspiring with Kenyatta to defeat the Constitution has been a retinue of politicians, public officials, judges and bureaucrats. Among these is Chief Justice David Maraga, who has refused to ask the President to dissolve Parliament, a request Uhuru would be constitutionally obliged to honour, over its failure to comply with the tw0-thirds gender rule.

In fact, all three branches of government, including the Judiciary and the Supreme Court, are technically unconstitutional having failed to adhere to the requirement. And despite famously annulling the 2017 presidential poll, the Judiciary has nonetheless failed to consistently uphold constitutional standards for elections, with the apex court justices infamously failing to deliver a crucial ruling less than two months after the annulment; has upheld discriminatory colonial laws; and allowed the reintroduction of laws against criminal libel that it had previously ruled unconstitutional. Similarly, though guaranteed operational independence by the Constitution, the police have acted as little more than partisan enforcers.

And having made peace with his erstwhile rival, Raila Odinga, Uhuru has abandoned all pretence of implementing the Constitution and is instead now looking to change it. Many suspect that it may be a ploy to hang on to power when his constitutional two-term limit expires in two years' time. 

In his book Zen and the Art of Motorcycle Maintenance, the late US philosopher Robert Pirsig wrote: "If a factory is torn down but the rationality which produced it is left standing, then that rationality will simply produce another factory. If a revolution destroys a government, but the systematic patterns of thought that produced that government are left intact, then those patterns will repeat themselves".

Clearly this has been the case with the Kenyan state. While the Constitution sought to restart the project of decolonisation aborted at independence, the job of implementing it has unfortunately been left to an elite with the same colonial patterns of thought that produced the first republic. It is a mistake Kenyans cannot afford to repeat.