The peril of selective constitutional obedience under Kenya Kwanza

Former President Mwai Kibaki during the promulgation of the new Constitution at the Uhuru Park grounds, Nairobi, on August 27, 2010. [File, Standard] The country may be preparing to mark Katiba Day on Wednesday, but a cloud of gloom continues to hang over its implementation, as President William Ruto's administration strengthens violations, selectively applies what favours it, and races towards entrenching a vindictive and authoritarian presidency. This is a regime battling cases filed to challenge decisions deemed unconstitutional, while overseeing one of the grossest violations of human rights, leaving at least 65 people dead since June 17 in a violent crackdown on protests. Critics and observers argue that Ruto's administration has plunged the constitution into crisis, emboldening violations through speech, action, and open defiance. What was meant to be a beacon of hope has, in their view, been reduced to a book gathering dust on government shelves, or a decoration in the office of the Attorney General. In the two and a half years since the Kenya Kwanza regime came to power, violation of the constitution has been a defining feature of Ruto's presidency. Critics claim the President himself is leading from the front. On paper-and in some of his flowery speeches-his commitment to implement the Constitution appears almost unrivalled. On Monday, while declaring August 27 as Katiba Day to be marked annually, he described the Constitution as a turning point in Kenya's democratic journey, ushering in citizen-centred governance, devolution, equitable development, and stronger protections of fundamental rights and freedoms. For those listening to him for the first time, it would be difficult to believe this is the same man who, only months ago, urged police officers to shoot protestors in the legs, oversaw the killing of demonstrators, starved devolved units through frequent delays in disbursing equitable share to counties, and rubber-stamped decisions later stopped by courts as unconstitutional. Backed by a compliant choir of legislators drawn from Kenya Kwanza and veteran politician Raila Odinga's ODM party, critics say the Constitution has morphed into a document of convenience: embraced when it advances Kenya Kwanza's policies, discarded when it does not. So brazen has the administration become that scarcely a week passes without one of its administrative actions, gazette notices, appointments, or proclamations being challenged in court. Numerous suits Last week, the High Court temporarily suspended the operations of President Ruto's multi-agency team on the war against corruption, following a suit challenging its legality. The petitioners-Nakuru surgeon Dr Magare Gikenyi, Eliud Karanja, Philemon Abuga, and Dishon Keroti-asked the court to declare the team unconstitutional and illegal. The case is far from isolated. A week earlier, Justice Reuben Nyakundi ruled that the establishment of the NHIF Pending Claims Verification Committee through a gazette notice of 28 March 2025 contravened Article 31 of the Constitution as read with the Social Health Authority Act. The court found that the Health Cabinet Secretary lacked powers under the Constitution or the National Government Coordination Act to empanel such a committee, noting it had no statutory basis. A growing tide of legal action now sweeps across the courts, with challenges also directed at Ruto's officers, whom critics accuse of being empowered to abuse the Constitution. Among them are Transport Cabinet Secretary Kipchumba Murkomen and Deputy Inspector General Eliud Lagat, both recently named in petitions seeking their removal from office and prosecution. Murkomen currently faces two petitions, one by Reuben Kigame and another by civil society groups and human rights lawyers, demanding his removal for allegedly inciting lethal force against protestors. A separate petition by the Katiba Institute, the Kenya Human Rights Commission (KHRC), and the Independent Medico-Legal Unit (IMLU) asks the Milimani High Court to declare him unfit to hold public office, citing "reckless, unlawful, and unconstitutional" directives. The condemnation of international partners and the cries of a section of Kenyans appear only to embolden Kenya Kwanza's resolve to disregard the Constitution. When Ruto stated publicly on January 4, 2024 that his regime would ignore court orders stalling key development programmes, it seemed to confirm his intent to defy constitutional boundaries. True to his word, arbitrary abuse of the constitution has become the hallmark of his administration. In the courts, numerous suits lie precariously before an institution struggling to shake off the Executive's shadow. Self-serving interests In recent months, Ruto has lashed out at the judiciary, questioned provisions of the Constitution, and pushed for constitutional changes through the National Dialogue Committee (Nadco) report. At the ninth Devolution Conference in Homa Bay two weeks ago, he described anticipatory bail for suspects as a backward provision. Yet he has also committed to implementing the ODM-Kenya Kwanza political deal that birthed the Nadco proposals. Observers believe the move is an affront to the constitution and a ploy to advance self-serving interests under the guise of reform. Political analyst Tom Mboya argues: "These attempts go against the Constitution. If it were implemented in full, we would not need such piecemeal amendments. In my view, they are designed to serve the short-term political interests of a few individuals rather than the public good." According to analysts, past regimes have limited public freedoms, but violations have worsened under the current administration. Communication consultant and political pundit Barack Muluka argues: "What we need is a constitutionalist at the helm, but unfortunately, we don't have one. We should have reminded ourselves that Ruto campaigned against this Constitution in 2010. Until the day we have a leader who is a true constitutionalist, we will keep going in circles." Muluka adds that former president Uhuru Kenyatta also failed to implement constitutional provisions, notably the two-thirds gender rule, and refused to swear in judges nominated by the Judicial Service Commission. "Even today, action should be taken against retired President Kenyatta as a lesson to future leaders that the Constitution is not a matter of convenience," he says. He described recent attempts to amend the constitution through the NADCO report as self-serving: "They are designed to expand the executive for political horse-trading, not for the benefit of the people. These amendments are dressed up with sweet promises to attract support from different constituencies, but in reality, there is nothing public-spirited about them." During his brief tenure, Ruto-who took an oath to defend the constitution-has pushed through policies critics deem unconstitutional. In education, stakeholders claim the new funding model has plunged the sector into crisis. Students complain of confusion, delayed registration, and withheld exam results as universities insist on full fees before admission. The government's move to reduce tuition fees by 15-40 per cent has affected over 500,000 students, yet many say they remain in the dark over the new structure. Meanwhile, his decision to lease State-owned sugar factories has sparked widespread layoffs and protests in Nyanza and Western Kenya. Workers in Nzoia, Muhoroni, and Chemelil factories have downed tools to resist dismissals triggered by privatisation. Kisumu Governor Anyang' Nyong'o described the policy as a betrayal of the sugar revival programme, warning it threatens to destabilise the sector. The administration has also been accused of curtailing media freedom through intimidation, threats, and the weaponisation of state advertising. Since 2022, critics have argued that Prime Cabinet Secretary Musalia Mudavadi has been occupying an unconstitutional office, created to fulfil a pre-election pact with Western Kenya. The opposition, once vocal against constitutional violations, now appears to have been co-opted. ODM's legal heavyweights, who previously mobilised teams of lawyers to challenge unlawful State actions, now sit comfortably government. According to a recent report by the Kenya National Commission on Human Rights (KNCHR), the government has used the legal system to silence critics through kidnappings, extra-judicial killings, enforced disappearances, torture, and arbitrary detention. Constitutional lawyer Clifford Obiero says the way forward lies in civic education: "Our path must be one of civic sensitisation, institutional integrity, and collective commitment to the Constitution as the foundation of our democracy and governance." Additional reporting by Rodgers Otiso

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