Five years later: Conspiracy against new laws builds up in Kenya

Exactly five years ago today, a wave of optimism swept across the country as the culmination of what pro-reform leaders termed the Second Liberation, symbolically came to fruition at a spellbinding ceremony witnessed by Kenyans and world dignitaries at Nairobi’s Uhuru Park.

The ratification of the new laws and rules of governance and engagement with the leadership that citizens agreed to subordinate themselves to from then and years to come. The ceremony capped the thorny and turbulent years back as Kenyans pressed for a new constitutional dispensation.

Retired President Mwai Kibaki (centre) displays a copy of the Constitution during its promulgation at Uhuru Park, Nairobi, in 2010. (PHOTO: FILE/STANDARD)

Over the five-year period, the country has witnessed a transformation, especially the radical shake-up of the governance structure after the 2013 General Election that ushered in devolution, which espouses the equitable sharing-out of the national cake among the 47 counties.

But it has not all been rosy, given the teething challenges such as turf wars between institutions jostling for power, incessant wrangling over the amount and pace of channelling allocations to the counties, performance of critical sectors like health under county governments, rivalry between the national and county governments, as well as a feeling that the new governance model also ‘devolved’ corruption to the grassroots.

Even more worrying have been attempts to roll back the gains through self-serving amendments to the laws by Members of Parliament, and actions by those in authority that are interpreted as undermining the spirit of the Constitution, including looting public funds as has been detailed in the Auditor General’s reports.

This week the National Assembly, unable to meet the August 27 deadline to implement the last batch of bills, including the one aimed at ensuring more women are in positions of power, voted to extend the timeline by one year.

MPs dismantled strict provisions tailored to enforce political party and electoral discipline and have signalled opposition to efforts by the Independent Electoral and Boundaries Commission to restore the rules to discourage party-hopping and punish electoral offenders.

An attempt to amend the Constitution to extend the current parliamentary term by changing the election date from August to December was unsuccessful on Tuesday but the MPs are pressing on with another to shield themselves from being held to account for their actions while in office.

They also watered down the Leadership and Integrity law, giving room to those with a questionable past to rise to public office.

Experts cite these actions to lobby vigilance. They argue much more remains to be done to deliver the letter and spirit of the new charter. The commission tasked to oversee the implementation says the country is on a good course to achieve the aspirations of the drafters who fixed strict timelines.

The Commission on the Implementation of the Constitution (CIC) explains the greatest challenge now lies in entrenching constitutionalism among Kenyans, as opposed to enacting legislation.

“Notwithstanding the extension of timelines sought by Parliament, it is fair to say that the implementation process is on course. We have reasonably been able to comply with the requirements. Full implementation is a long-term process and it continues past the timelines set,” said CIC Chairman Charles Nyachae.

Ensure sustainability

He explained as their term in office comes to an end, they will be urging the players to concentrate on reinforcing the culture of constitutionalism, arguing that much emphasis has been on enacting the laws.

“As we exit the stage we will be asking for the different players, both Government and other institutions, to ensure sustainability of the process and to ensure citizens now become the guardians of the remaining process,” said Nyachae.

He added, “On the enacting of the required laws, on a scale of ten, I would give it an impressive seven. But in inculcating that culture of constitutionalism, I would even be reluctant to give it a five. That is the area we should be going to now, to entrench it to Kenyans.”

Nyachae argued despite the 15 laws that were required under the Sixth Schedule to be in place by today and which are in different stages, there were many other amendments required for laws that had already been passed.

“There are also some other hundreds of Acts that, though they are not required to be in place by tomorrow (today), it is prudent to have them reviewed as they are supposed to be consistent with the Constitution, especially after devolution,” said Nyachae.

Narc-Kenya Party Leader Martha Karua, an active player both in the clamour for the new Constitution and its writing, said although great efforts have been made in the implementation of the document, much still needs to be done for Kenyans to fully enjoy its benefits.

Karua argued while the Executive had contributed towards ensuring full implementation, it was also holding back, especially in ensuring full devolution of functions that are constitutionally set for county governments.

“Jubilee has done well, especially ensuring devolution money is getting to counties. However they have failed to give the technical capacity required to ensure counties run seamlessly. It appears like the Executive is giving with one hand, while sabotaging with the other,” claimed the former Justice Minister.

Karua said it is the duty of the national government to nurture the counties, but decried its failure to give the technical capacity in such areas like the health sector and delaying release of cash was tantamount to sabotaging the process.