Constitution: Retain what has worked and rectify what has not

Former President Mwai Kibaki displays a copy of the 2010 constitution at Uhuru Park, Nairobi. Looking on is then-Attorney General, Senator Amos Wako. [Courtesy]

Today, the 2010 Constitution begins a new decade of implementation. An 11-year-old is no longer a toddler, but one steadily climbing into young adulthood.

The new constitutional dispensation was earned through sweat, blood and even lives. After promulgation, the Constitution was hailed as a progressive document the world over.

It promised a break from the old, autocratic and self-centred constitution. The old order was derided for centralisation of power, resources and marginalisation of the most vulnerable. The 2010 dispensation heralded respect for human rights, fair distribution of the national cake, devolution of political power, gender equality and freedom of expression.

It is, therefore, prudent for Kenyans to take stock of the past decade under the new law. What has worked for us? What has not helped an inch? How can we make it? This, we owe to ourselves, our children and the future generations. BBI, that has recently run into legal headwinds, is an attempt to amend the 2010 Constitution.

Did the process follow the right procedure? Will it alter the basic structure of the Constitution? Well, these questions have got an unequivocal No at the High Court and the Court of Appeal. The issues could well go to the Supreme Court for determination.

While it may appear cumbersome and even a hurdle to economic growth, the continuing debate on the Constitution, demonstrates a maturing democracy and crucial efforts to entrench constitutionalism and the rule of law.

The 2010 Constitution has changed Kenya in a big way. Devolution created 47 county governments each with a governor, Assembly and billions of shillings each financial year. Some counties have made tremendous progress in serving wananchi and tackling marginalisation. Unfortunately, some have become dens of corruption.

The Constitution has curtailed powers of the president, which were in the past abused left, right and centre. This starts with the Presidency, where the boss cannot unilaterally hire or fire the deputy. An independent Judiciary has stood firm against attempts to go against the rule of law.

However, we have not successfully implemented the one-third gender rule, which hangs on the head of Parliament. How can we enact it and ensure a level playing ground for both men and women across all sectors?

Still, we must question the creation of bicameral House that includes the National Assembly and the Senate. For a poor country like ours, should we continue funding both Houses, which raises the wage bill but performs nearly the same functions? The oversight role played by the Senate can be done by the National Assembly, not forgetting that MCAs are also supposed to check on governors.

These and other concerns should inform Kenyans' debate on our 10-year-old Constitution.