Nine years ago, we trooped to Uhuru Park in a celebratory state comparable only to the 1963 lowering of the Union Jack, and the 2002 Moi handover to Narc. In a day clouded only by the presence of then Sudan’s President and ICC fugitive General Al Bashir, we welcomed our new Constitution, a document that had taken many years, lives and limbs to procure. Finally, we believed, we had crossed into Canaan, the land of constitutionally guaranteed milk and honey. The imperial presidency was no more, we now had a strong Judiciary, a Parliament and constitutional commissions that could check the Executive.
No longer would resources be distributed on the “siasa mbaya maisha mbaya” principle. With a strong system of devolution, resources would be equitably distributed, ensuring that those who had been historically marginalised were compensated over time. Citizens would be fully engaged in governance. Hygiene in our public sector would return, with a whole chapter dedicated to leadership and integrity, a rare innovation informed by the historically bad habits of our leadership.
We would henceforth elect only the best. Once elected, our MPs would no longer increase their salaries at will. We would henceforth ensure that women, persons living with disability and the youth were a part of our governance structure and never again would any of our institutions be comprised of more than two thirds of any gender.
Finally, this was one Constitution we would not allow politicians to play political ping-pong with, amending it at will to achieve nefarious objectives as had happened in the 60s and 70s. How naïve we were! Nine years later, while the Constitution has delivered on some of its promises, we have spent more time devising ways of subverting it than ensuring its implementation. The warning signs should have been obvious when we abolished the Ministry of Justice and Constitutional Affairs in a constitutional transitional period, thus ensuring that the constitutional implementation had no political head in the Executive. It has not all been downhill though.
Devolution has generally changed the countryside, with forgotten places now lighting up with dispensaries, roads and markets. There is no part of the country you can go to that will not boast of some good quality establishments, formerly the preserve of Nairobi and the big cities. But the assault against devolution has been powerful and consistent, the current starvation of revenue being the most visible evidence of that assault.
The Judiciary is obviously stronger and more independent and has been the sole bulwark against both Parliament and the Executive. But no one doubts that after its ill-advised nullification of the presidential election, the Judiciary now watches its every step, with only a few judges daring to issue orders that may annoy the Executive or Parliament. While the Presidency is tamer, Parliament that was meant to check it operates as an extension of the Executive. Most constitutional commissions are no different from parastatal boards, existing to play to the Executive’s tune than to be a check on its excesses. Parliament has found a way round the salary issue and threatens anyone who dares limit its appetite for more.
As for leadership and integrity, we filed that issue away on day one, continuing with business and as usual, until the indefatigable duo of DPP Haji and DCI boss George Kinoti came and woke us up from slumber. The inclusion of women in our governance structure remains a dream, with institutions like Parliament and even the Supreme Court operating below the constitutional minimum. As for amending the Constitution to achieve short-term political aims, Parliament has made attempts at making changes that claw back on the limitation of its power. Fortunately, it has been difficult to get the necessary numbers and the Judiciary has on several occasions stopped the House on its tracks. As we travel headlong into amending this same Constitution, we must take a moment of reflection and retrace our steps, committing ourselves to protect the ideals of what we already passed in 2010. If we fail to do so, no fresh amendments will deliver the Kenya we want, and deserve.
- The writer is an Advocate of the High Court of Kenya
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