There are more ways to kill Constitution than repealing it

Too many people in public life do not seem to have even read the Constitution.

The Kenyan constitution is unusually emphatic about its central role in the nation’s life. It is, of course, our basic, fundamental law. It is the framework for government, the basis for all policy making and lawmaking. It should even be basic in our daily lives, because the human rights chapter makes the respect for rights the responsibility (the duty,) not just of government but also of the people as well.

No Constitution is perfect, and certainly there is some room for improvement of our Constitution. But a general acceptance of it and its importance is essential for its effectiveness.

Arguably the Constitution is gradually being strangled, asphyxiated, or killed by a thousand cuts. This may not always be deliberate. And the techniques, or failures and neglects, are varied.

Not knowing what it says

Too many people in public life do not seem to have even read the Constitution. Perhaps this is too generous an assumption when thinking about an MP who proposes that pregnant girls should be barred from school even though the Constitution actually lists pregnancy as a basis on which there must not be discrimination (Article 27(4)). Any law doing what the MP wishes must explicitly say that it is not intended to limited the right not to be discriminated against (as well as the right to education). What would such law say – that girls are to be discriminated against and punished, for being raped, victims of poverty, or even of foolishness? Very likely he knows all about how one gets elected under the Constitution – but rights?

Turning a blind eye

How else can one explain Cabinet Secretaries who are lawyers but don’t seem to bother to check whether they have powers before issuing edicts? I am thinking of one who orders bars to be shut – something that is most obviously the responsibility of the county not the national government, and anyway cannot be done by the snap of the fingers. Or another who says various road licences will be abrogated. Again – such actions must respect Article 47 on fair administrative action, even if (which I doubt) the office in question has this power.

There are still a few issues on which the Constitution says law must be passed within 18 months – but has not been. Maximum size of land holdings (land ceilings) is a prominent example (Article 68(c) and Fifth Schedule). And since a court held the law about how to exercise the right to recall members of Parliament was unconstitutional, yet it has not been replaced, then law on that topic does not exist – a breach of Article 104(2) and the Fifth Schedule.


Tokenism is observing requirements in a way that does not have any real impact, but in the hope that it will ‘look good’.

So-called ‘Public participation’ is often an example. All too often bodies making laws or policies and taking decisions purport to involve the public, but give completely inadequate time, and often do not take public input into account, or even give feedback on whether that input was used or why rejected.

Not giving a damn

How else can one describe the refusal of certain people to attend a parliamentary committee meeting when requested – or even summoned?  This is not to deny that sometimes Parliament is unreasonable in its demands for people to attend.

Also, neither national nor county governments seem bother too much about respecting the limits on their powers under the Constitution.

Rely on constitution when convenient 

This is common. The Constitution is a great document when it gets you into power. But it is different when you don’t like its impact.

People sometimes use the constitution to boost their own benefits and status. The National Assembly tries to exclude the Senate from matters that clearly concern counties. Senators are jealous of Governors – who are more in the limelight, and who have greater chances of money-making through abuses of power (paying ghost workers, buying air).

There is reluctance to accept the role of independent commissions. MPs constantly try to bypass the clear provisions about the Salaries and Remuneration Commission fixing their salaries and benefits. The National Police Service doesn’t accept a lot of the roles of National Police Service Commission. The Lands Ministry and the National Land Commission went to the Supreme Court about their respective powers.

Then we find the increasingly common practice of disregarding or disobeying court orders. Even sometimes saying proudly, it seems, “I have no intention of obeying this order” – even the President.

Those outside government may be guilty of this: using the Constitution and rights when under pressure, but ignoring court orders that they are legally bound to respect. We can’t, with integrity, have it both ways – using the Constitution when it suits us and ignoring it when it does not.  

Taking for constitutional requirements

The Constitution says that the State must publish “important information affecting the nation” (Article 35(3)). So it is no big deal for the government to publish the expected report on the helicopter crash that killed General Ogolla. Surely this fits that description – but the President doesn’t seem to say “as required by the Constitution”.

Amendments for self-interest

Very frequent amendment of a Constitution inevitably undermines it. This is more so if the reasons for amendments – or even attempted amendments – seem to be for basically self-centred motives not the good of the country.

So far the 2010 Constitution has not been amended. But various attempts to do so have been made – the Building Bridges Initiative effort only failing because the courts, including the Supreme Court, held that the method being used was unconstitutional.

The very first published Bill to change the Constitution would have removed MPs from the list of ‘state officers’ – the motive being that MPs should no longer have their salaries fixed by the SRC.

The MPs’ current desire to constitutionalise the Constituency Development Funds and other similar funds is not more principled. MPs get praise from constituents for the CDF almost as though it was their own money. And many MPs seem to understand better a process that involves handing out bursaries or building clinics than making laws and scrutinising government actions.

The core of the BBI process, and now of the NADCO process, has been to ensure that prominent politicians don’t really lose elections – they still have nice cosy jobs. Or that presidents can buy support by promising certain nice jobs to those who supported them. The same seems true of the Chief Administrative Secretaries position also proposed to be constitutionalised.

Now a senator wants all the elected top dogs to have seven-year terms. However, apart from the need for a referendum, the Constitution provides, I would argue, that this would not come into effect until after the next election because it would confer a “direct pecuniary benefit” on members of Parliament (Article 116(3)). Two more years of generous salaries and allowances!

Not passing an amendment may also be self-serving. Look how many efforts to ensure the gender rule in Parliament failed because of lack of quorum. And it was passed in the BBI attempted amendment because of other sweeteners.

How this ‘kills’ a constitution

None of these (except a successful amendment) changes the constitution. The words of the document would be/are still the same.

The call for a new Constitution was based on past experience of government based on ethnic loyalties, personal aggrandisement, disregard for rights and rejection of the rule of law. In other words, it was not just a new Constitution that people wanted, it was a new Kenya with a new style of government.  

If persistently they do not get that, inevitably their faith in the Constitution will fade.

A final thought: if, persistently, a Constitution, or other law, is not respected – and choosing when and if to comply is not really respecting it – is it really law?

This article was first published by the Star Newspaper


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