The alphabet of elusive Katiba goals
By Nzau Musau
| August 29th 2020
A for Abolishing of the old order
Through its design and structure, the 2010 Constitution abolished a great deal of the governance structure of the past, including the much-fancied imperial president. When he was sworn in, President Uhuru Kenyatta found he could not do many of the things his predecessors easily did in a whiff. His predecessor Mwai Kibaki received the first shocker when he attempted to unilaterally nominate a Chief Justice, Attorney General and Director of Public Prosecutions.
B for Bill of Rights
Touted as one of the most comprehensive Bill of Rights the world over, it covers basic, social-political and economic rights. Its provisions have found powerful expressions in the courts in the last 10 years, including the abolition of mandatory death sentence, which gave hope of life to death row inmates who had been living in the valley of shadows of death for eternity.
C for Chapter Six
Designed as the masterstroke for Kenyans’ cherished love affair with skullduggery in access and retention of public office, Chapter Six of the Constitution broke the hearts of many. At the very early stage of implementation, the courts are said to have made a big mockery of it, giving a free pass to all to access and retain leadership, to the extent cartoonist Gado Mwampendwa began to depict it as a toilet roll for all to wipe off their sins.
D for Deadlines
Transitional clauses of the Constitution imposed strict deadlines, which the 10th and 11th parliament grappled with. The frenzy with which they passed the legislation is the stuff legends are made of. With the Commission for Implementation of the Constitution (CIC) led by its tough head prefect Charles Nyachae barking on the side, Parliament burnt the midnight oil many a time to pass laws, until their quality was questioned.
E for Equity
The value of equity as espoused in the Constitution and its application in fiscal determinations of the new devolved structure brought honour across the length and breadth of the country. In Orwellian terms, some places woke up – quite late in the day – to realise they were not more equal than others. The Constitution gave hope to those left behind to catch up, and for those ahead to forge with the awareness that there are others behind them.
F for Fundamental freedoms
Article 25 provides for fundamental rights and freedoms that may not be limited; freedom from torture and cruel, inhuman or degrading treatment or punishment, freedom from slavery or servitude, right to a fair trial and the right to an order of habeas corpus. They sound Greek until they are abused on your person, and the courts enforce them. When you leave the court, in words of the Court of Appeal in the famous case of Stanley Githunguri in the ‘1980s, you will “raise your eyes up unto the hills and utter a prayer of thankfulness.”
G for Governors and the gubernatorial pride
It is said the 2010 Constitution created 47 mini-presidents across the country. Their own assertion to this claim has swung from the ordinary, the comical and the absurd. Some move around with branded lecterns, mobile toilets and medical ambulance in tow. In the initial days, some deployed aide de camps dressed in oversize uniform behind them while some inspected guards of honour. In Machakos, governor Alfred Mutua built an impressive State House look-alike office, complete with guards lining up its main walkway.
H for the Hype of devolution
In the initial days, counties were toppling over themselves in devolution frenzy and projects, which turned out not viable or sustainable. In the pandemonium that ensued, a lot of money was siphoned out by devolved cartels working in consonance with new ones at the local level. Benchmarking tours were made in the name of devolution, in and out of Western capitals, until the reggae was stopped.
I for Impeachments
A new addition to our ever-expanding political vocabulary, the term “impeachment” became a new horror to our 47 mini-presidents as MCAs threatened to sink their careers. Embu’s Martin Wambora made history for being impeached twice by his MCAs, but was saved twice by the gods. Since then, many have felt the dagger of impeachment in their bosoms, ending up at the Senate to plead their case.
J for Judicial independence
The Judiciary has always been independent until Constitution 2010 checked in and it became INDEPENDENT. With an independent Judicial Service Commission, judges and magistrates strengthened their resolve to apply the law without having to look behind their backs. The Supreme Court led from the front in 2017 and invalidated the presidential election, and is now living the consequences. But even before this, the president himself was crying out helpless… “mnataka nifanye nini?”
K for the Kirimino/criminal conduct
So much money has been looted from the public coffers in the process of implementing the 2010 Constitution. So much “kiriminoo” behaviour in county assemblies, from MCAs sleeping in the assemblies, speakers gassing MCAs, governors being shot at (Makueni) to MCAs undressing their colleagues inside the chambers, and so much more, represent the worst of devolution of power.
L for Leadership
In the process of implementation, the importance of quality leadership to drive meaningful changes has come out forcefully. Because of a strong leadership, some institutions have done well within their scope while others have faltered badly, at the expense of self-preservation and expediency. Where the selection process failed, the results are as clear as midday sun.
M for My dress my choice
Since the 2010 Constitution, the “my” movement expanded exponentially, underscoring the cornerstone of newfound freedoms. In 2014, Kenyan women took to the streets under the theme “My Dress My Choice” to defend their choice of dressing. It is also during this time that the rainbow flag began to fly around, as Kenya’s queer community asserted their rights; my body my choice. And then the heathens surged forward, demanding references to God to be struck off official recitals or documents; my belief my choice.
N for New currency
It may have taken long, but when the new currency notes hit the streets last year, a great promise of the 2010 Constitution was fulfilled. Out with it went the twitching idolisation of the heads of State and new came the appreciation of the beautiful mosaic of Kenya’s nature and history. President Kenyatta missed out of this permanent imprint enjoyed by his predecessors.
O for Okiya Omtatah
A knight in a shining armour or Kenya’s grand gun for hire? Without begrudging his motivation, Omtatah’s alacrity in filing court cases has befuddled no less than the Law Society of Kenya (LSK). He became a campaign item in the last LSK election, with candidates complaining the previous leadership was so docile that Omtatah outshone them. He has made full use of wide opportunities availed by the Constitution to make a career out of public interest litigation.
P for Public participation
The empowerment of the ordinary Kenyan, the Wanjiku, to take a central place in governance has been the hallmark of the 2010 Constitution. Their voices have been heard in determination of budget priorities, in suitability of candidates for public offices and before major decisions are made. The courts have also asserted the importance of this concept in invalidating decisions or actions of those in power, further reinforcing the central place of Wanjiku in the governance structure.
Q for Quashing
In the last 10 years, a lot of decisions made by leaders or institutions without regard for the new order have been quashed by the courts. The National Council for Law Reporting has reported, in its own website, more than 60 instances where sections of the statutes have been declared unconstitutional. It has been 60 years of quashing redundant pieces of legislation, and redundant decisions made by people who slept through the revolution.
R for Revenue sharing
From pesa mashinani, pesa sio ya mama yako, pesa otas to one man one shilling one vote! The division of money between the county and national governments has been a thorny affair. An analysis of the actual spending of this money however shows most has gone into recurrent and little on development. A lot more has been chewed by people entrusted to safeguard it.
S for the Senate
When they reported to the 2013 Senate, senators were shocked to realise that they were walking into a shell of a house, whose only defining moments was the passage of the formula for resource allocation every three years, and the passage of Division of Revenue Bill every year. The inaugural senators spent four of their five years plotting how to exit the Senate and become governors.
T for Third gender rule
As elusive as the Luhya unity, so the saying goes. Despite a huge window of opportunity accorded to Parliament by the Supreme Court, and a subsequent High Court finding on the same hanging dangerously above them, Parliament has consistently failed to pass legislation guaranteeing the achievement of the requisite gender threshold in elective positions and public appointments.
U for Unlimited potential
The potential immanent in the Constitution, as is, is unlimited. Right from its preamble, Article 10, Bill of Rights, Chapter Six, Public Finance and Management, to mention but a few. The promise in these provisions, if complemented by a conscious effort, can lift Kenya to heights never imagined before. In the document, Kenya is sitting on a goldmine and it may take generations for this awareness to settle.
V for Values
Article 10 on national values and principles of governance is perhaps the most cited article of the Constitution, and for good reasons. Former Deputy Chief Justice Nancy Baraza was sunk in by this provision when a tribunal appointed to probe her conduct extrapolated over 100 values, including appreciativeness, candor, caution, discretion, modesty, propriety, prudence, remorse, wariness and intuitiveness as values required of public and State officers. Unfortunately, the Article appears to have been strictly applied only in the Baraza inquiry.
W for Wasted chances
Despite the great promise, Kenya wasted a lot of chances to get certain things right in the last 10 years. Chief among them to weed out unsuitable characters in public and elective positions. The slow takeoff of alternative dispute resolution mechanisms, the lack of full appreciation for customary law and slow inculcation of the spirit of constitution in public and private conduct have not helped matters.
X for the grabbed lands
The advent of the 2010 Constitution brought with it a new wave of accountability in relation to land acquisition. Those squatting on public lands woke up to find their walls splashed with huge X marks, and before long, the demolition squads came rolling in heavy machines.
Y for You
You are the person holding the promise of the Constitution through your acts of commission or omission. By failing to demand accountability to those who ought to be accountable, exercise responsibility where it is demanded and conduct yourself in the manner of a responsible citizen, you are eroding the meaning of the Constitution.
Z for the Zero-sum games
Skewed implementation and the manner in which the 2010 Constitution was passed transformed its implementation into a zero-sum game of sorts. President Kenyatta said as much in his 11th address to the country since the Covid-19 outbreak on Wednesday, pushing for a more long-lasting document, instead of “a cease-fire document that enforces a zero-sum game in which the winner takes it all.”
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