Our woes aren’t constitutional but desire for hegemony

The debate on whether or not we should amend our 2010 Constitution is picking up fast. This was inevitable after the “hand-cheque” between Messrs Raila Odinga and Uhuru Kenyatta. Raila has never hidden his preference for a parliamentary system, for instance, and it is inconceivable that he could have donated some legitimacy to Mr Kenyatta absent some promises of amendments.

There is no doubt that we have one of the better constitutions in the world, founded on lessons from other countries, but especially from the errors of our past, and our long held desires for a fairer, less repressive, and more equitable Kenya.

Nevertheless, the Constitution--borne out of compromises and butchered by our legislators in Naivasha--has some shortcomings. The question, therefore, is not whether it could be improved, which of course it can, but whether the timing of this debate, and some of the ideas being pushed will make Kenya better, as opposed to making things easier for a few.

I am uncomfortable about these debates. First, we have not implemented the Constitution as anticipated. In fact, those responsible for implementing it have shown disdain and contempt for it since 2010. The recent revelations by Francis Muthaura on how he directed government scholarships to be awarded, after 2010, to former President Kibaki’s relatives is proof positive of this contempt.

Mr Muthaura argues that because it was early days after the Constitution was passed, some mistakes were made. But believe you me, had he read the Constitution, and understood it, he would have known that the idea behind the 2010 Constitution was to change dramatically the way things were done in the past, and create checks and balances. It was not and still is not rocket science that this then meant that directives from the presidency like this one were illegal. And I suspect that Muthaura, who is a learned man, knew that but decided to brazenly ignore the law.

And therein is our problem. We cannot, and should not, doubt the Constitution when it has not had any real and full chance. Those in power have worked their buttocks off to subvert it at every turn, seeking to restore the powers and privileges of the hegemony that wants an imperial presidency that is not challenged even when it is stealing in our faces. We have seen, for instance, the Police Service Commission become obsolete as State House has taken over its functions. We have seen the Public Service Commission become a lackey of State House and appoint people to high positions without public interviews as DPP Noordin Haji can attest.

We have seen lazy, compromised and sycophantic politicians being rewarded with appointments to parastatals and state bodies and then we expect these institutions to perform! We have seen stacking of hired guns in the Judicial Service Commission so that the Judiciary can be made subservient to State House. And we have seen the illegal retention of the repressive provincial administration, at a time when we have elected devolved governments so as to undermine devolution.

Second, the timing is all wrong. How we should trust those who opposed and have contempt of the Constitution to miraculously operate with goodwill for the poor baffles me! It is similar to believing that we can have a war on corruption when we still have no answers for the looting of Eurobond and SGR!

There are some—like religious groups whose recent contributions to a better Kenya have been disappointing and un-prophetic and which openly welcome proceeds of corruption unquestioningly—who believe one of the solutions is to increase the Executive with additional positions. This idea looks like it was hatched by the American Embassy and is about elite compromise and sharing of the proceeds of power so that it is business as usual, rather than the better Kenya we yearn for.

And then there are those propagating the nonsense that the reason we are broke is because of devolution and the Constitution. Hogwash! We are broke because massive loans were borrowed unconstitutionally—and then chopped without mercy. We are broke because Jubilee has no understanding of austerity and budgeting. We are broke because each year huge amounts are spent on a provincial administration that should not exist. We are broke because each year we allocate funds for renovating State House and the DP’s residence, in addition to allocating vast sums for “hospitality” and “tanga tangaring.” There are many examples.

Our problems are not constitutional. Our problems are about exclusion, a desire for hegemony by some tribes, and our unreserved stealing. These do not need amendments. And Raila better be careful what he wishes for, as those he is dealing with are not known for keeping promises, as Musalia Mudavadi so well knows. And their agenda of maintaining hegemonic control of Kenya may see removal of term limits added into the mix.

- The writer is former KNCHR chair. [email protected]