Five things 2010 Constitution changed for us, what is ahead

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

Sunday, the 27th of August marks the 13th anniversary of the promulgation of the 2010 Constitution.

For such a momentous occurrence in Kenya’s political and social history, there has been little pomp and circumstance to celebrate this feat.

Majority of Kenyans have lived in the multi-party era, so the impact of the Constitution may not be as intensely felt since they do not have a past to compare the present with. But for those that lived in the 80s and 90s, the Constitution remains one of the brightest points in our growth.

Five things stand out that have made the reforms wrought by the Constitution remarkable. The most obvious is the growth of governance institutions beyond what was called the “imperial presidency”. 

While one may argue that the Legislature remains hooked to the presidency and does the latter’s bidding in most respects, the Judiciary on the other hand, has found its voice. Granted, it has on occasion been reckless in failing to consider the political and social consequences of its decisions, case in point being the stoppage of the Finance Act, but it has passed the independence and legitimacy test.

Secondly, the human rights environment has fundamentally changed. Some may argue that changes in the human rights environment are more form than substance and I have even heard some activists claim Kenya systematically persecutes political opponents and human rights workers.

True, there have been some unfortunate incidents of police brutality especially during the recent mandamano, but I am not convinced that there is any systemic political persecution of government critics in the manner one finds when they walk across the border into Uganda, Tanzania or a little further into Rwanda.

In these our East African Community partners, one discovers what a ruthless crackdown on opponents really means.

Thirdly, we have transited from resource allocation based purely on politics to a more rule-based system. Through devolution, every corner of this nation gets resources as a matter of constitutional right, its politics notwithstanding. Even development programmes by the national government are required to be equitably distributed by law. Granted, politics still plays some role in the latter, but this pales in comparison to the pre-2010 season.

Fourthly, we have a more inclusive government especially on gender. Until 2010, women used to occupy tokenistic public positions. I remember times when women were only granted the Ministry of Culture and Social Services in Cabinet.

Post 2010, women have occupied some of the most consequential executive positions whether as Ministers or Principal Secretaries. It is these opportunities for women to shine in public administration that produced eight women governors in the 2022 elections.  We still have some way to go in total gender inclusion especially in the legislature, where we are in active breach of constitutional edicts, but we have nonetheless made great strides.

Finally, our electoral process is cleaner, allowing people to exercise their rights to vote without undue interference or rigging. One can tell these improvements by the reduced number of election petitions filed, and even more critically, the number of petitions that are successful. This has decreased exponentially since 2010.

Obviously there has been serious contentions on the presidential elections, but anyone honest enough will admit that this has to do more with our political culture than actual interference with the electoral process.  There are however still some major outstanding issues in the reform process.

The issue of land, particularly matters of resolving historical injustices, remains incomplete with the lackluster National Lands Commission more concerned with the lucrative compensation process than resolving historical issues.

The much-expected police reforms have not borne much fruit and instances of police brutality, corruption in police ranks and use of torture in extracting confessions continue to cloud the image of the police.

The leadership and integrity chapter of the Constitution remains an aspiration with most institutions in the sector struggling to deliver on their mandates.

But all things considered; while there is still much to do to ensure the Kenyans who woke up early on 4th August 2010 to vote overwhelmingly for a reformist constitution see all its benefits in their lifetimes, Kenya has become the better for the Constitution. Hongera Katiba!

-The writer is an advocate of the High Court