Kenya’s new constitution was promulgated on August 27, 2010 by the former president, Mwai Kibaki, following a referendum in which 67 per cent voted in the favor of the new law. This was a culmination of several attempts to change the independence constitution. The clamor for a new constitution was in part necessitated by increasing dissatisfaction with the country’s governance structure, marginalization of communities and groups, and limitations on civil and political liberties. As the country commemorates a decade under the new law, it can be argued that devolution, institutionalization of governance and, expansion of civil and political space have been some of the defining transformations ushered in by the constitution. While challenges to the implementation of the constitution exist, the contemplated review courtesy of the Building Bridges Initiatives should consolidate these gains for shared prosperity.
Since the promulgation of the new constitution, Kenya has made significant social-economic and political gains within a short period. A devolved system of governance that has divided the country into 47 semi-autonomous units with their own governments and legislative assemblies, and a senate to champion devolution and provide oversight to the county governments are in place. Devolution is perhaps the most visible feature of this constitution. The new system has not only led to improvements in access to health care, agriculture, and government services, but has also changed narratives surrounding historical marginalization by facilitating development in all parts of the country.
Secondly, there has been a significant change in the processes of governance in the country as compared to the era of the independent constitution. While the old constitution bestowed much power and influence on individuals, the new constitution has transferred key powers and responsibilities to independent institutions with a system of checks and balances to ensure accountability and the protection of the country’s interests. These institutions are established pursuant to Chapter 15 of the Constitution to, among other functions, secure observance of constitutionalism. These include the Office of the Auditor-General (OAG) that is tasked with independently and objectively auditing the accounts of all government institutions at the end of each final year. The OAG has been emboldened by its independence and security of tenure for the Auditor-General which has cushioned the office from political interference. Other notable institutions include the Judicial Service Commission (JSC), the Office of the Director of Public Prosecution (ODPP), the Public Service Commission (PSC), and the Commission on Administrative Justice (the Ombudsman).
The third remarkable change under the new constitution was the expansion and protection of civil and political rights. Dubbed as an activist constitution by the former Chief Justice Willy Mutunga, it (constitution) has conferred on Kenyans a greater degree of economic, social-cultural, civil and political freedoms compared to the independence constitution. These range from rights to be consulted in the decision-making process such as legislation and budget-making processes; creation of avenues to hold elected leaders accountable; to timely access to government services. On human rights, the new constitution requires the president to report to parliament during the annual State of the Nation address on measures taken to promote human rights and social justice as national values.
Conversely, several challenges have surfaced regarding its implementation. Of utmost concern is the failure by parliament to facilitate the operationalization of the two-thirds gender rule for its membership. While the Supreme Court ruled that this should be achieved progressively on a transitional basis, parliament was supposed to enact relevant legislation. The lack of political goodwill to pass this legislation has seen several bills defeated in parliament. Beyond being a constitutional requirement, the enactment of a two-third gender rule in parliament is a court-ordered legislation, failure to which the Chief Justice may advise the president to dissolve parliament in line with Article 261.
The Referendum
The tenth anniversary of the constitution comes amidst talks of a referendum to amend certain sections of the law. These talks began following the March 10, 2018 ‘handshake’ between President Uhuru Kenyatta and opposition leader Raila Odinga to end the state of political uncertainty that followed the 2017 general election. The ‘handshake’ gave birth to the Building Bridges Initiative whose key mandate was to explore ways to foster inclusivity and end ethnic antagonism in the country. Proponents of a constitutional change contend that the current governance structure at the national level – a presidential system – is anchored on a ‘winner take all’ principle thus side-lining a significant part of the country. According to Article 255 of the 2010 Constitution, changing the structure of governance, independence of commissions and offices or configuration of county governments can only be undertaken through a referendum.
As talks on changes to the Constitution gain momentum, it is crucial that it is accompanied by an audit of how the document has been implemented so far. In some instances, such as observance of the chapter on leadership, integrity and compliance with court orders, there have been serious failures. Such moves undermine the rule of law and erode public confidence in the leadership and institutions.
Consequently, it is imperative that any change to the constitution is accompanied by measures to protect the gains made so far, as well as remedies to the challenges encountered during the implementation process. In particular, the referendum should resolve the stalemate over gender equity and guarantee the participation of women and youth in political processes. Also, the country is likely to be served better by an increase in financial allocation to county governments, increased accountability at country levels, independent institutions, and further measures to protect the dignity and fundamental human rights of citizens.
Mary Ododa is a Project Officer at the HORN Institute. Elvis Salano is a Research Assistant at the HORN Institute.
Photo: Retired President Mwai Kibaki holds forth the Constitution of Kenya during its promulgation in 2010 (Photo Credit: The Standard)
