Constitution is not the problem, calls for referendum ill-informed and costly

The Constitution is a product of protracted negotiations spanning more than 20 years. While it set a maximum of seven years for its full implementation, much of it remains unimplemented.

Indeed, most of the laws, institutions and systems that existed before 2010 are largely intact, including the system of governance.

Kenyans must ask themselves hard questions before embarking on constitutional change, especially because the Constitution does not exist for political expediency.

It is not simply a statute that mechanically defines the structures of Government and the relationship between Government and the governed.

It is a reflection of the 'national soul'; the identification of ideas and aspirations of a nation; the articulation of the values that bond its people together.

The provisions of the Constitution address the root causes of violence and the recurring tensions that the country experiences.

It provides opportunities for better development and realisation of aspirations based on the essential values of human rights, equality, freedom, democracy, social justice and the rule of law.

Further, it provides an opportunity to address the challenge of inequities in development, poor governance, and service delivery.

Budget deficit

The huge budget deficit, massive public debt and unjustified public spending have grossly increased. However, this is not attributable to the implementation of the Constitution. It is the policy choices of the Executive and the Legislature that are problematic.

One cannot blame the Constitution as an expensive venture. Instead, wastage and mismanagement of public finance are at the heart of the problem.

The duplication of governance and resources by county and national governments should be eliminated by ensuring that national government is restructured in line with the devolved system of governance.

The national government should only be represented in counties by technical officers. State functions should be carried out through county administrations.

County governments are constitutionally assigned to handle county planning and development, land survey and mapping, boundaries and fencing, housing, electricity and gas reticulation, energy regulation, transport, agriculture, health services, and trade development and regulation.

The Constitution is delivering better services through devolution, which has provided services that have not been available to residents since independence in 1963.

Further, marginalised areas have resources for their own development.

Therefore, devolution is slowly achieving the promise of delivering equitable services in all corners of the country; it is addressing the challenges of imbalances in development in an unprecedented manner.

Various provisions

State officers and institutions have not strictly abided by the various provisions of the Constitution.

Both county and national governments have not pursued policies to promote national cohesion and unity; they have not been effective in ensuring that recruitment to public offices reflects regional and ethnic diversity.

The Constitution has various levels of representation. However, compared to jurisdictions and the size of Kenya’s economy, Kenyans are over-represented.

Therefore, there should be a reduction in the number of MPs and MCAs by adopting a mixed member proportional representation system without compromising the national values of diversity, protection of vulnerable and marginalised groups, and the equality principle regarding gender.

Security agencies exercise their powers and functions in line with the Constitution and are subject to the authority of the supreme law and Parliament. Unfortunately, this fundamental shift has not been implemented, respected or upheld.

Further, the national government has not set national security objectives and policies in accordance with the broader constitutional objectives and purposes.

Different arms

The Constitution provides for separation of powers and independence of different arms and institutions of State such as the Judiciary, Legislature, security organs and Office of the Director of Public Prosecutions.

However, there is still massive structural, operational and funding interference by the Executive, specifically in the roles of other arms of Government, and the various bodies and commissions created by the Constitution, making them weak, dysfunctional and compromised.

Finally, while there could be a few issues to correct, the calls for a referendum and constitutional amendment are ill-informed, misguided and meant to obscure the failure to implement the letter and spirit of the Constitution.

Further, these political machinations are unnecessarily disruptive, costly and polarising. Their sole purpose is the political calculus of managing succession.

Mr Wainaina is executive director, International Center for Policy and Conflict