Amendments to the Kenya Constitution eroding gains made so far

With the number of bills coming up in Parliament geared towards entrenching an all-powerful presidency, the country risks reverting to the old constitutional order. This will lay to waste all the effort, time and resources put in place in drafting a new constitution.

The journey to a new constitution took close to 20 years to bear fruit and the struggle was not without its pain and sorrow. Civil society and individuals bore the brunt of police brutality as they vociferously agitated for increased democratic space and the granting of individual freedoms.

When retired President Mwai Kibaki promulgated the Kenya Constitution 2010 in August of the same year, Kenyans heaved a sigh of relief. It would however seem that the relief was premature. One notable aspect of the new constitution is the increased independence of an impartial Judiciary that of late, has been actively engaged in arbitrating issues of national import.

Under the old constitution, all senior government officials served under the pleasure of the President, who hired and dismissed them at will. These vast powers were subject to abuse and those who ran afoul of the system can attest to this.

It was with this in mind that the drafters of the new constitution sought to give security of tenure to some office holders to instil a sense of professionalism away from Executive wishes. Ministers of government, judges, police commissioners, provincial commissioners and parastatal chiefs were all presidential appointees. This tended to interfere with the way they carried out their duties. Under the new constitution, the role of the president is to propose anems then Parliament goes ahead to approve and vet appointees before they assume office.  The benefits of these checks and balances are apparent because we end up with people who are qualified for the jobs they hold without feeling indebted to any one in a top position of leadership.

While the Inspector General of Police enjoyed security of tenure under the new constitution, the Government conspired with Parliament to have that security of tenure clause removed from the Constitution. In effect therefore, the IG serves at the pleasure and command of the president and must toe the government line or gets kicked out.

Last month, the President retired Deputy Inspector General (DIG) of police Grace Kaindi from service but she contested the move in court on the grounds the Constitution protects her tenure and that she had not attained the mandatory retirement age.

The motive behind The Statute Law (miscellaneous) Amendment Bill 2015 is suspect, because it seeks to give the President powers to sack the DIG irrespective of whether the holder has reached the threshold of retirement. Ordinarily, this responsibility falls under the ambit of the National Police Service Commission (NPSC). Similarly, the bill seeks to give the President powers to sack the Criminal Investigations Department Director.

Under the proposed bill, the constitutional provision that one of the three positions of Inspector General of Police and any of the two deputies is reserved for the opposite sex will be removed. This will be disadvantageous to women. There are efforts to change important sections of the constitution without recourse to a referendum. This poses the danger of making Kenya a totalitarian state. Why then did we fight for a progressive constitution?