Constitution implementation: The glass is half-full, not half-empty

The Constitution does not begin and end with politics and elections — at least if we think of politics Kenyan style (personal ambition and ethnic manipulation — and huge expenditure of money).


Article 10 is at the heart of the Constitution: The national values and principles of governance. They include patriotism, national unity, participation of the people, human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalised, integrity, transparency and accountability and sustainable development. (I’ve omitted ones that look too much like politics!)

Is Kenya, becoming a fairer, more equal, kinder, more inclusive, more open and more responsible society? By responsible I have in mind taking responsibility for one’s actions (which is what being accountable is about).

It’s been said before, but bears repeating, that the most hopeful signs are in the courts. The courts are the principal interpreters of the Constitution, and can even give directions to government that are supposed to be followed. But Parliament has passed some good laws as well.


So are people treated in a more inclusive way? One good sign — ­it is hard to get away from elections — is that this year prisoners were able to vote for the first time in an election. The courts decided that they could vote in the 2010 constitutional referendum. In fact, justice David Majanja decided in January 2013 that prisoners had the right to vote — like any other adult citizen —unless they had committed an election offence. But this year, the IEBC gazetted regulations about prisoners being registered to vote, making it a reality. Former British Prime Minister David Cameron said it made him “feel sick” [like vomiting] when the European Court of Human Rights said Britain should allow prisoners to vote. We have done it without “outside” pressure, and without any apparent backlash from the public.

The Persons Deprived of Liberty Act is another sign of increased respect for one of those neglected sectors of society — people in trouble with the law. The Constitution says Parliament must enact legislation providing for the “humane treatment of persons detained, held in custody or imprisoned”. It requires decent conditions in prisons and police cells, programmes for reform of offenders, and respect for dignity, privacy and other rights (as far as possible for those who are not at liberty).

Recently, another Western “leader”, President Donal Trump, announced he was reversing an Obama order about transsexuals in the US military. Ignorance and bigotry marked his “tweet”.

I doubt whether there are any transsexuals in the Kenyan military, but my reaction was that at least in Kenya, there has been some movement towards the acceptance of sexual minorities. We still have a long way to go before we accept gays, but at least we allow people to form and register organisations concerned with their interests — thanks again to the courts. And the courts and Parliament have taken steps towards improving the lives of intersex people (people who have physical characteristics of both sexes, and who may find themselves becoming transsexuals if they opt for a sex that is not the one others have always seen them as). Intersex people in prison or arrested may decide the sex of any person who is to search them. And they are not supposed to be put in cells with people of determinate sex (unfortunately, physical abuse of intersex people is not unknown). The courts have held that transsexual people may form organisations. And they may have their records (like examination certificates) changed to reflect their new gender.

Gradually, attitudes towards persons with disability are changing. More are taking an active role in society. And members of other minorities are also having more opportunities. The Constitution requires it, though progress is slow. The recognition of the Makonde, though almost certainly a cynical election ploy, has in fact enabled this marginalised group to vote and gives them chances of a decent life that has been denied them in the past.


The Access to Information Act was an important initiative. It was energetically sponsored by Woman representative Priscilla Nyokabi (who stood as an independent this time round and has apparently lost — such are the vagaries of our elections). It sets the right of citizens to get information held by the government on a firm foundation. It is important because it strengthens the right of the people to participate in decisions that affect them: If people know what is going on, their participation can be much more effective.

The important idea reflected in the Constitution that people have rights, just because they are human beings, not as a gracious gift of government, is gradually taking hold. The Basic Education Act recognises the right to education. It makes it the duty of the Cabinet Secretary to ensure that “children belonging to marginalized, vulnerable or disadvantaged groups are not discriminated against and prevented from pursuing and completing basic education.”

The recent Health Act recognises very clearly the right to health. It also has some very practical provisions: For example, to make it easier for women to breastfeed their babies. This is not only a support for the rights of women, but very important for the health of the nation. It is a huge benefit for a baby to be breastfed, and the WHO recommends exclusive breastfeeding for six months. Only 61 per cent of Kenyan babies are breastfed for so long.

The courts have recognised the rights of members of religious groups to express their religious convictions, and to do so within the mainstream of Kenyan society. Adaptations of school uniforms to accommodate Muslim girls, or Akorino students, and adjustment of schedules for Seventh Day Adventist students or employees are among the implications of some court decisions.

Kenya has remarkably vibrant social and other media. Sometimes too vibrant, maybe, but think what it would be like (remember what it was like) if people were afraid to express their opinions. The Constitution’s recognition of the rights of free speech, free media and academic freedom are important guarantees of accountability and democracy. And the courts have played their part: holding that a crime of defamation is unconstitutional, and that laws limiting free speech must not be vague and unnecessarily broad in scope.

The courts have made a very positive contribution to the enforcement of the right to fair administrative action. Decisions (by the police, licensing authorities and others) must not be made without giving those affected a fair chance to be heard, and reasons must be given when decisions are made.


We need, of course, to go further. There is still some tendency to behave as though Kenya is a Christian state, although “There shall be no State religion”. We have plenty of fine words. But fine words, as an old English saying goes, butter no parsnips. We might say: Put no ugali on the table. Words are not without value. They spread ideas, raise expectations and may prompt action. What words should not do is to convince us action has been taken when it has not. We should not read the Persons Deprived of Liberty Act as a statement of practice; it is a statement of duty. Reality remains remote. There is a bit of a risk of government believing (or thinking it can convince us) that talking a lot about national values achieves a great deal. Even setting up a Directorate of National Cohesion and National Values in the Office of the President (did you know there was any such thing?) will of itself achieve nothing. But if public servants really are trained using various manuals already developed, and above all if the people begin to insist that those values are actually respected, then the transformation promised by the Constitution can actually occur. But a start has been made — on the values and other provisions discussed here and others we have no space for. Our glass is not empty.




Stay in the Know!

We respect your privacy.