Has the Constitution failed or it’s the implementers? Kenyans have their say
The words, “having participated fully in the making of this Constitution” in the preamble of the Constitution ring loud on the nature of the 2010 Constitution.
The same preamble talks of “the aspirations of all Kenyan’s for a government based on the essential values of human rights, equality, freedom, democracy, social justice and the rule of law” which point at the transformative nature of that constitution. While a preamble of a constitution is not one of the binding parts of the supreme law, it captures the essence of the constitution.
The Constitution, we can see, is, therefore, about the people and their aspirations. It can be argued that it is implemented, Kenyans will be able to achieve their aspirations. It is now almost nine years since the promulgation of the Constitution under the then President, Mwai Kibaki. This is perhaps an appropriate time to assess how it is faring in achieving Kenyans’ aspirations.
This was the context upon which the Katiba Institute set out to audit various aspects of the Constitution, which culminated in a convening on June 18 that brought together around 400 people at Ufungamano House — the site of so much past civil society effort towards the new constitution — to discuss the findings.
THE CONSTITUTIONAL CONVENING
The meeting focused on the state of implementation of five main themes in the Constitution: National values and principles of governance, devolution, electoral integrity and elected MPs, the gender principle and operation of constitutional commissions. The research benefited from the work of writers who are among over 20 experts who responded positively to Katiba Institute’s call for contributors to help audit various aspects of the Constitution.
The experts were from diverse sectors in Kenya, including civil society, academia, and government.
The convening reminds us of the phrase popularised by former US President Richard Nixon, “the great silent majority” in 1969.
Without going into the validity of the phrase, and the context within which it was originally used, the term raises an important point that may be true in many states: That the voices of the people are often not heard, drowned out by those of the prominent and the politician. In the Kenyan context, it reminds us that the Constitution followed a long process of countrywide consultation, particularly through the Constitution of Kenya Review Commission chaired by Prof Yash Pal Ghai.
Arguably, the process reached many people who had been “the great silent majority” in various parts of the country. This led to the Bomas draft. Perhaps it is this process that inspired the drafters to dare state in the Preamble that the new constitution had involved “full” participation of Kenyans.
This is also an important point in the current context of calls for a change of the constitution made by a section of the political class. If Kenyans were fully involved in the constitution-making process, are they still fully involved in its implementation and in the calls to change it?
Being a transformational Constitution that seeks to change the Kenyan society, are people’s lives experiencing transformation? How should they react to these questions?
The first step is, of course, to look at how our government system has worked, and ask questions such as has it worked as we hoped? If not, why not? Is it because of issues with the Constitution itself or those who are supposed to make it work? Where it has worked, do we understand why — because we should understand not only what seem to be failures but successes as well.
An uninformed population becomes susceptible to selfish interests and effectively becomes deprived of the opportunity to fully participate in determining how they will be governed and perhaps end up in the category of “the great silent majority”.
SOME OF THE ISSUES
We can’t tell you about all the points that we raised but can share some of the highlights of the presentations.
The Constitution aims, through devolution, to, among other goals, enhance the ability of the people to influence state power. It also seeks to promote social and economic development throughout Kenya. While counties are supposed to be about sustainable development (a national value), but parties are not committed to sustainable development, and politicians love big infrastructure, not development for the people. Various national laws have seriously undermined devolution.
When asked, “Who loves their MP?” one hand was raised! MPs may be (elected) by the people but are not for the people, we were told. MPs make poor laws and are ineffective at controlling the presidency. They do not read Bills properly, and their proceedings are often shrouded in secrecy, especially in committees. We don’t even know how they voted in committee on the gender question – one of their notable failures.
Every stage of the electoral process that chooses those MPS is flawed. Many Kenyans cannot vote because of problems with ID cards. There is no credible register of voters. Voting for persons with disability was often not properly facilitated. Counting was problematic, as was the transmission of results. The technology is not reliable.
Political parties are too ethnically based — although the Constitution tries to prevent this. And once elections are over, parties do nothing, including in terms of policymaking.
The creation of constitutional commissions was motivated by the desire to free certain decisions from the clutches of politicians, or the caution of public servants, to enable expertise to be brought to bear on decisions, and decisions critical of the government to be made independently. We should be conscious of what would happen if we did not have these commissions, while being aware of possible improvements, including in their commitments to their own independence.
Few of the comments of speakers were directed at changing the Constitution. The Registrar of Political Parties, commissions, MPs, and parties were among those identified as having failed to do what the supreme law clearly requires them to do. Why change the Constitution to introduce more rules that will not be enforced?
The people, too, have not played their part. Do the people, we were asked, engage public officials, go to public meetings and express their views, do they even talk about the Constitution among themselves?
REACTIONS FROM THE FLOOR
This was not an orchestrated meeting of political “Yes people”. Some present were even organising to make use of the possibility under Article 257 for a genuine people’s initiative to make some changes in the Constitution. But many participants agreed that the issue was not so much about the content but its implementation, and even the role of the people themselves.
“Kenyans must look at themselves in the mirror and ask if they are doing enough,” one participant said.
Constitutions are created by the people to govern themselves effectively. To achieve this, they must not only be progressive but also need to be implemented. Progressive constitutions require the participation of the people in their development and in their implementation. This also involves the respect, protection, promotion and fulfillment of people’s rights. While nine years should be long enough for Kenyans to assess how the Constitution is working, the people need to understand what the Constitution was supposed to achieve, and where any failures lie.
The June 18 event owed much to several civil society organisations partnered with Katiba Institute in the planning and execution of the convening, including in mobiling participants. These included The Institute for Social Accountability (TISA), Transparency International-Kenya (TI-Kenya), the Centre for Rights Education and Awareness (CREAW), Uraia, Mzalendo, Kenya Tuitakayo, Elections Observations Group (ELOG), and the Kenya Human Rights Commission (KHRC). The event was graciously supported by the Embassy of Sweden in Kenya through Diakonia, and the Ford Foundation. We are very grateful to them all.
By Ben Nyabira & Kevin Mabonga
Ben Nyabira is a senior researcher and Kevin Mabonga is a communications officer
This Article was first published by the Star Newspaper on 30th June 2019