IT IS NOT ENOUGH TO HAVE A GOOD CONSTITUTION
Kenya is celebrating 10 years since the promulgation of the Constitution of Kenya 2010 which was hailed as one of the most progressive Constitutions in the world. At the promulgation of the Constitution, Kofi Annan challenged us that it was not enough to have a good Constitution, but it was important to monitor and ensure its implementation.
The enactment of the 2010 Constitution was to usher in a new constitutional order and a departure from the excesses and exclusions of the independence constitution. The bicameral Parliament and devolution were seen as the answer to all the ills of exclusion and marginalization that had been perfected by previous Governments. The new Constitution gave Parliament vast powers of oversight, and the hopes of people were invested in Parliament.
Reflecting on the last ten years, there have been a lot of gains brought about by the Constitution of Kenya 2010. Rights and freedoms enshrined in the bill of rights have broadened the democratic space, and devolution has demystified power, and taken development to the grassroots and previously marginalised areas. There has however, also emerged a trend of massive impunity, disrespect for the rule of law and grand corruption, which threaten to submerge the gains brought about by the new Constitutional order.
Article 10 sets out our national values which are divided into four categories: the nature of the state; the rights of the people; mode of governance; and sustainable development. It creates a state based on patriotism (rather than ethnicity), national unity, sharing and devolution of power, democracy, participation of the people, and the rule of law.
Chapter 4 is a very progressive and detailed bill of rights. While laws have been passed, violations of these rights are a common occurrence. From the unlawful use of excessive force and brutality by police to unlawful evictions, criminalizing freedom of expression and curtailment of the right to assembly, there’s been below optimal realization of the benefits of the bill of rights in practice.
The right to picket has been gravely clawed back. The high-handed crackdown on demonstrations during the Saba Saba Day commemoration; and against demonstrations across the country petitioning government to arrest the COVID-19 looters does not augur well. The right to information is compromised. The socio-economic rights to health, water, sanitation, housing and fair employment opportunities have been affected by corruption.
There have been strides however, in securing the rights of children, women, PWDs, the elderly, minorities and marginalized. Policies are in place to cushion these groups, loan products targeting these groups have been created, hospital insurance and monthly cash tokens for the elderly is in place, the rights to inherit land equally for men and women, brothers and sisters has taken root firmly. Despite the fact that Article 27(8) that requires all elective and appointive bodies to be comprised of not more than 2/3 of the same gender has not been fully implemented, there are more women, youth, PWDs, minorities and marginalized in elective and appointive bodies.
Chapter six creates the principle of servant leadership, and requires leaders and civil servants to ensure their actions are consistent with the purposes and objects of the Constitution; demonstrates respect for the people; brings honour to the nation and dignity of the office; and promotes public confidence in the integrity of the office. Kenyan leaders have failed miserably at this.
Chapter six also requires Parliament to enact a law to curb corruption especially amongst leaders and public officers. Kenya is losing nearly Kenya Shillings 1 trillion annually to looting and grand corruption. The fight against corruption appears to be sabotaged by bureaucrats and those in power.
Chapter seven deals with elections. It promises Kenyans a free, fair and transparent election process. This remains a pipe dream. There is need for a complete overhaul of election processes and systems to make it less expensive, and to assure Kenyans that their votes will count. Right now, a lot of Kenyans are disillusioned, and many say they will not vote at the next election because it makes no difference as the vote will be stolen. This is a serious indictment on our democracy, as it challenges the very foundation of our democracy. We need to work towards integral election processes right from the party primaries.
The Constitution creates three arms of government with each arm independent of the other and their individual roles clearly set out. Unfortunately, there has been blurring of the separation of powers principal. The Executive has consistently flouted the rule of law, disobeyed court orders with impunity. Parliament has tolerated partisan practices and party interests to override national interests. Parliament has also not effectively checked on the excesses of the Executive, which in turn has contributed to rampant corruption, increased debt burden, the appointment of persons known to be corrupt or in some cases do not have required qualifications to top Government positions, enacting legislation that are not in the best interest of the country, such as the Security Laws Amendment Act of 2014 which seemed to undo substantially the constitutional provisions that empowered the National Police Service Commission. Parliament has also failed to enact critical legislation like the one requiring Parliament to be comprised of no more than 2/3 of the same gender. The Senate has also not fared well in its role to protect devolution, given the level of corruption and waste in Counties. The Constitution establishes the judiciary as an arm of Government and its independence is enshrined. The Executive and Parliament have however used the power of the purse to undermine the independence of the judiciary.
We must protect the judiciary from becoming irrelevant, because if we don’t, we shall have opened the floodgates to lawlessness and impunity. We must not allow an imperial Presidency to find its way back by clawing back on the Constitutional gains through the conspiracy of silence. The checks in the Constitution must be employed to protect Kenya and Kenyans from the tyranny of the Executive.
Chapter 11 establishes the devolved governments. This has been embraced positively since counties that were previously marginalized are for the first time sharing in national resources for development. Devolution is however hampered by corruption and nepotism, and by National Government interference. There is need to structure the County Governments to operate in a more efficient manner to enable them to improve the socio-economic welfare of their people.
The Constitution provides that national security is subject to the authority of the Constitution and Parliament and should be pursued in compliance with the law and with utmost respect for the rule of law, democracy, human rights and fundamental freedoms. Security organs are not to act in a partisan manner, further interests of a political party or prejudice a political interest or cause that is legitimate under the Constitution. Our security organs have greatly failed to live by the Constitution. Rule of law, respect for human rights and fundamental freedoms are unknown to them, and they frequently violate rights and the rule of law, in the manner of arrest, in dispersing picketers and in providing all round security to all Kenyans. Security organs also frequently act in a partisan manner that further the interests of certain individuals and political parties. This is especially visible during elections, and in the recent arrest of senators. Parliament should be able to oversight them.
In large part the 2010 Constitution has had positive effects, however as noted above we are still unable to guarantee Kenyans a free, fair, transparent and credible election process. The 2017 elections were very divisive, and a semblance of peace and order was only restored after the famous handshake between H.E. Uhuru Kenyatta and Rt. Hon. Raila Odinga who subsequently set up a task force to interrogate several issues including how to ensure an integral election process.
Now, we as Centre for Multiparty Democracy:
Aware that governance reforms are inevitable and that there exist various initiatives including the Building Bridges Taskforce which completed its work and has prepared a report that will set the roadmap for vast constitutional, legislative and administrative reforms in this country.
Cognizant that the expected report has the potential of polarizing citizens across the political divide.
Embracing Article 4 of the Constitution of Kenya that establishes Kenya as a multi-party democracy founded on the national values and principles of governance, resulting in Kenya.
Initializing multi-party democracy as a key objective of Centre for Multiparty Democracy, which brings together political parties and provides a platform for political parties, political actors and policy makers to engage in dialogue and co-operate in strengthening multi-party democracy underpinned by constructive inter/intra party dialogues based on policies and collaboration.
Realizing that in a true multi-party democracy, every political party and person has the right to opinion, thought and belief, and the right to manifest and freely express such thought opinion or belief, and to seek, receive or impart information or ideas, without being intimidated, admonished or chastised.
Reconciling the rights set out above, and the right of every individual to make political choices which includes the right to campaign for a political party or cause; with the need to cross any bridges harmoniously in a manner that will cause the least harm to Kenyans and Kenya, yet deliver the transformation that is best for Kenya and Kenyans.
CMD-Kenya in commemorating 10 years since the promulgation of the 2010 Constitution, now seeks to enable political parties to be effective promoters of peaceful resolutions of political divergence in ideology thought and opinion, and to provide a platform for dialogue and consensus building in a conducive environment that is issue based and solution oriented, and hereby calls on its member political parties, party leaders, and all Kenyans to:
- Reflect on their leadership performance under the new constitutional dispensation, a decade after it was promulgated.
- Respect the divergent opinions, thoughts and beliefs that shall emerge during debates and discussions regarding the proposals contained in the BBI Taskforce Report and engage effectively with stakeholders and authorities.
- Refrain from admonishing or chastising political parties, people or groups of people that hold divergent views, thoughts, opinions or beliefs.
- Urging them to embrace persuasion and dialogue towards consensus building through issue-based discussion thereby maximising its impact and leverage. Let us engage and persuade one another on:
- What exactly should change?
- Why should it change?
- How should it change?
- When should it change?
If we focus on these issues as we engage, we shall be able to divorce the discussions from personalities and embrace issue based and solution-oriented dialogue, which shall result in useful debate for guiding citizens in understanding the best way forward.
Ten years after the promulgation of our Constitution, Kenya is on the dawn of a new horizon. A horizon where we can engage effectively on issues and come up with solutions that benefit Kenya and Kenyans. Our greatest days are ahead of us.
Sen. Abshiro Soka Halake, MP
Chairperson – Centre for Multiparty Democracy (CMD-Kenya)