Kenya not experiencing constitutional moment
By Demas Kiprono
| July 3rd 2020
Since Kenya became an independent country, certain laws have been relied upon to minimise the democratic space and political participation. Such laws touch on the freedom of expression and media, the right to associate and mobilise politically and the right to assemble and protest.
To achieve this, most newly independent African governments embarked on elaborate processes to concentrate power with the titular head of government and to water down rights and freedoms.
In some countries, it involved amending the constitution to turn the new states into republics led by powerful president’s instead of prime ministers; abolishing devolved governments and upper houses (Senates) and abolishing multi-party democracy, all under the guise of creating an efficient government and fostering national unity.
Most newly independent African nations turned into authoritarian regimes beholden to the whims of their founding fathers. They replaced the mission of extracting resources from colonies for the good of the colonial master – to the extraction of resources for the good of the head of state, his family and the ruling elite. Presidents and their agents could allocate land to themselves, family, friends and others as they deemed fit.
After the collapse of communism, many countries experienced clamour for a return to multiparty democracy in the late 1980s which was soon followed by heated calls for constitutional reforms that would replace independence constitutions that many felt reflected the will of the colonial oppressors and the political establishment.
These periods, also called ‘Constitutional moments’, were characterised by a desire for lasting constitutional arrangements that resulted from specific, emotionally shared responses, to shared fundamental political experiences.
Because they tend to monumentally shift in power, many regimes attempted to obstruct these changes by targeting opposition politicians, intellectuals, independent media, artistic expression as well as the clergy using public order, sedition, media and security laws. Arbitrary arrests, torture, trumped-up charges and outlawing of newspapers, magazines, political organisation and rallies were commonplace.
What kept the Kenyan constitutional moment alive was the determination that one day, the people would be governed by a system that enshrined separation of powers, human rights, the rule of law and democracy.
The marginalised would be recognised, the judiciary would be independent, and parliament and the executive would work in the best interest of the people.
Our constitutional moments included the IPPG in late 1990s, election of President Mwai Kibaki in 2002, rejection of the Amos Wako Constitution draft for deviating from the Bomas draft, the 2007 disputed elections that laid bare systemic problems and divisions within Kenya, plus the National Accord that committed to lead to legal reforms including constitutional changes.
The hallmarks of the new social contract in Kenya was a strong Bill of Rights, creation of devolution, gender parity, equality before the law, separation of powers that removed the executive from Parliament and judicial independence.
Moreover, elections, policing, human rights protection, fighting corruption, criminal prosecutions, the appointment of judges, government audit would be carried out by independent offices and commissions as opposed to government departments beholden by the executive.
Barely 10 years after the promulgation of 2010 constitution, a fresh push for a constitutional overhaul is being fronted by politicians under the BBI. On Madaraka Day, President Kenyatta declared a ‘constitutional moment’ and invoked the founding fathers and their aspirations.
One of the dangers of a constitution that emerges without the blessing of a ‘constitutional moment’ is that it does not contribute to a sense of union, or the formation of identity in society.
Unlike the Bomas process and the one that led to the current constitution where real public participation was fundamental, the BBI process seems to be an up, down approach where consensus is built in boardrooms, then later imposed on disenfranchised people.
A safer and logical approach would be to find ways to fully implement the Constitution of Kenya 2010 which represents aspirations of Kenyans.
Mr Kiprono is a Constitutional and Human Rights Lawyer.
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