Why Constitution is yet to be fully implemented

Former President Mwai Kibaki displays the Constitution during its promulgation at the Uhuru Park grounds in Nairobi, August 27, 2010. [File, Standard]

Since it attained Independence in 1963, Kenya has undergone a Constitutional crisis that has lasted decades. The rule of law has been sabotaged, subverted, incapacitated, undermined and alienated at every turn. When Kenya gained Independence, it inherited and worsened the colonial crisis of governance with dire infringements on human rights and calamitous consequences on its economy.

Kenya adopted a new Constitution in August 2010 with a view to building a new society and breaking away from the past. The various provisions address the challenge of inequities in development, poor governance, and service delivery. The Constitution provides opportunities for better development and realisation of aspirations of the people.

The Constitution was approved by an overwhelming 67 per cent of voters. However, disagreements and impediments to its implementation continue to threaten what so many people had died and suffered for.

What was to be a bright future for our children seems to be slipping from our grasp. The implementation process is proceeding without a clear policy to guide it. Laws have been developed, in many instances, without a policy to anchor them.

The failure to develop a policy has had several consequences. Some of the laws passed are not in line with the letter and spirit of the Constitution. Institutional conflicts over mandate, and general turf wars at different levels of government, have characterised the implementation thus far. Dispute resolution has not been effective because of limited trust, suspicion and mistrust between the two levels of government.

Public participation

Both the National Assembly and Senate have passed laws that tend to undermine the Constitution. The National Assembly has on several occasions passed laws that go against the text and spirit of the Constitution such as CDF, security law, finance law, media and communication laws, among others, that have been publicly cited as having failed to meet the Constitutional threshold and courts have declared them unconstitutional.

There is absence of sufficient and meaningful public participation in making key decisions at both the national and county government level.

The failure to effectively unbundle functions is creating confusion with regard to devolved functions and their resources. This confusion led to a court case on the division of Health functions between the two levels of government. The court emphasised the need for resolving issues regarding division of functions through mutual consultation and cooperation. The failure to restructure and align the old order of government especially ministries, departments and departments with devolution has caused huge economic and financial costs.

Conflicts have been a common feature of inter-governmental relations. This has undermined the principles of the cooperative government envisaged in the Constitution.

The Provincial Administration’s restructuring process is not yet complete. Despite claims that the administration is already restructured, the fact that the Interior ministry felt the need to develop a policy to guide the process is evidence that there are pending issues regarding the restructuring.

Undoubtedly, the restructuring process touches on a number of stakeholders beyond the national government. These include the county governments, independent offices and institutions, the public who are consumers of national government services, the private sector, among other stakeholders.

There are certain practices of governance that negate the values and principles enshrined in the Constitution. Corruption and lack of prudence in use of public funds are on the increase. There is lack of effective enforcement of the law to constrain behaviour that threatens erosion of the principles of the Constitution.

There are numerous factors that plague the implementation of the 2010 Constitution. The Executive branch wields a lot of power and has refused to accept its changing role and responsibilities, thereby slowing the pace of implementation.

Second, the law has not been stripped of all technicalities and Parliament exercises its coercive powers to rule the general public. Parliament has been passing laws to benefit itself (their remuneration and also CDF) while undermining other arms/organs by abusing legislative powers.

Third, the political discourse for decades has been driven by vested political interests. This can be seen in politicians proposing amendment to the Constitution to alter the elections date from August to December. The proposal underscores the continuation of impunity and the lack of consensus on the election date is threatening the fabric of Kenyan society.

Kenyans voted overwhelmingly for an August election date but the vested interests are trying to extend their stay in office because of their politics of the belly.

Fourth, the passing of laws (example through omnibus Miscellaneous Bills) and corruption is a worrying prospect that threatens the implementation of the Constitution. Not only have MPs been slow in passing Bills, but they are out of touch with the letter and spirit of the Constitution.

Various Bills have stalled in Parliament, making it difficult to institute any reforms. Parliament has non-reformers and they are therefore inherently incapable of instituting a reformist agenda that is the Constitution. Parliament watered down the leadership and integrity law for protection of politicians.

Gender principle

Fifth, the frivolous attempts at unnecessary amendments to the Constitution are severely hurting the implementation process. All amendments to the Constitution must inherently enhance the Constitution and not undermine its general spirit.

The amendments and disagreements are the result of competing interests. An example of such an amendment would be the provisions relating to the gender representation requirement in article 81(b) which would ensure the full application of Article 27 and the not more than two-thirds gender principle.

Sixth, Constitution implementation should follow the timelines outlined within the Constitution itself. This has resulted in rushed law and institutional reforms where Bills being pushed through Parliament have resulted in numerous errors and weaknesses, creating disjointed, fragmented and subverted implementation of the Constitution and has fundamentally weakened its true sanctity.

Seventh, there has been slow implementation of the security and judicial reforms. One of the many drawbacks affecting the implementation of the Constitution at the time of promulgation was the lack of a judicial arm capable of mediating the disagreements that arose. Prior to the Supreme Court being established, it was difficult if not impossible for the Judiciary to adjudicate any cases which warranted an interpretation of the new Constitution.

Eighth, there is a lack of resources as the bodies entrusted with overseeing the application and dispensation of the Constitution are unable to institute certain provisions, for example, with respect to the task force on devolution.

There is no synergy between the various elements and commissions in charge of implementing the Constitution. The various commissions have not been enabled to function appropriately. The process has been politicised and lacks the authenticity needed to institute reforms.

Finally, the national government has exercised undue power leverage against the county governments. These includes delaying and slashing county funds, enacting laws and administrative policy actions that hamper development of devolution.

Mr Ndung’u is executive director, International Center for Policy and Conflict