Let us make our Supreme Law deliver on its promise

This week I was privileged to attend a high level conference on the implementation of Africa’s constitutions. Attended by African academicians, bureaucrats and civil society actors, the conference was both sobering and uplifting. Listening to experiences shared by the participants, it was sobering to recognise that the similarity of the African experience. We all know that we have a shared colonial past and liberation history. One would expect the trajectory post liberation to go different ways. In reality, the postcolonial experience in Africa has largely been the same. It is a story of big man politics, the plunder of African resources for the benefit of a few and the use of tribalism as an avenue to seek and maintain power. That is the story from Cape to Cairo. What was sobering was just how, like one meek family, the African citizen has accepted subjugation and how the African leader has failed to seek the national good. Cry the beloved continent.

I was, however, uplifted when I realised that while the past may be depressing; there are a few lights that point to a better future. Even more inspiring was the realisation that Kenya is perceived by others as one of those lights that the continent is looking to for leadership. While we in Kenya may not realise it, we have made great strides in nation building in the last five years. Our Constitution, with all its deficiencies, is one of the most pro-people in the continent. Because it was produced over such a long while, it genuinely seeks to respond to our realities and to cure for many of the ills that defined our difficult past. It seeks to create institutions that can take Kenya to the next level. We may not see that but others do.

Our implementation process, with all its hiccups, is probably comparable only to South Africa. In just five years, we managed to pass all the laws necessary to implement our Constitution; some countries in the continent have not passed their implementing laws 20 years after passage of their Constitutions. We set up all the critical implementation institutions in time. Our Judiciary is one of the most independent in the continent. Devolution, which is the principal promise of the new Constitution, has largely been implemented. Despite its many challenges, one must be awed by our sheer confidence in ourselves that we risked reengineering the structure of the State overnight, and managed it largely unscathed. The Constitution may not have put an extra plate of Ugali on the Kenyan table, to quote former President Moi, but if we refuse to get distracted, it can and must.

For us to move forward and deliver the ultimate promise of constitutionalism, which is a prosperous peaceful united and inclusive Kenya, there are some steps that we must take. Firstly we must commit to keep the Constitution as our guiding foundation. This relates not just to the letter but the spirit of the Constitution. We must seek to uphold the ideals that we committed to and shame those who would direct us elsewhere. It must not be said of us that six years into the Constitution we are still shooting demonstrators while there are less aggressive ways of quelling even the most unruly of the riots!

We cannot continue to have public officers in office whose credentials under Chapter 6 are credibly in question; it behooves them to leave office in respect of Article 73. We must not delegitimise the Constitution by refusing to pursue the processes it has put in place for the protection of our fragile democracy and instead resort, in the first instance, to extraordinary measures.

Secondly, we must commit to celebrate and build on our successes. While it is important to expect much from ourselves, we will only grow if we learn to celebrate and then build on our successes. Finally we must ensure that the citizen is at the centre of our implementation agenda. It is a shame that six years into implementation, the question of Article 43 socio-economic rights remains a theory. The public cannot continue to support a Constitution if it only appears to be resolving elite contestations while saying nothing about general citizen welfare. Over to us.