This will be my last piece in this series commemorating the Constitution’s tenth anniversary; an anniversary in which there has been a deafening, but unsurprising, silence by government.
Unsurprising because Constitutions like Kenya’s which are borne of struggle, tend to limit governmental power and so are not much beloved of governments.
Recognising the reality that there would be attempts to push against these power limitations, the Constitution had created institutions whose primary role was to protect the people against abuse of power by elements of government.
Unfortunately, the tale of the Constitution has been one of betrayal by most of these institutions. The first culprit in this regard has been the Legislature. When the Constitution shorn the “Imperial Presidency” of most of its powers, these powers were largely granted to Parliament.
For instance, under Article 221, the Presidency’s power over the purse was removed from the shackles of the National Treasury to the National Assembly. The assumption was that being the people’s representatives, this institution would most fairly determine the allocation of resources within the principles set out in Articles 201 and 203.
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While the loosening of the stranglehold by the Treasury has resulted in relatively more principled allocations, Parliament has many times abused its allocative power by punishing institutions that have, in the rightful exercise of their constitutional powers, displeased it.
Some victims of this power abuse have been the Judiciary and the Salaries and Remuneration Commission whose budget allocations have been cut primarily as a punishment for taking positions deemed unacceptable by the House.
The next betraying institutions have been the Chapter 15 Commissions. These institutions were created by the Constitution and given security not just of tenure but of their emoluments to enable them be strong enough to protect the people from possible abuse of power by the other arms of government.
One can hardly think of any of these Commissions that still exercise their mandate as set out in Article 249; protecting the sovereignty of the people, ensuring that state organs respect democratic values and promoting constitutionalism. The majority have been moribund, some only been mentioned in the context of the occasional scandal.
The third betrayal of the people has been by the County Legislatures. While many Governors have been a disappointment, it is at the County Assembly that the gap between expectation and delivery has been largest.
The Constitution had assumed that these legislators, being the ones closest to the electorate would br the ultimate defenders of the interests of the citizens against the possible misuse of power by Governors.
Unfortunately, the standard operating procedure in many Assemblies has been the search for the greatest private advantage for members either through unmerited “benchmarking” trips or excessive sitting allowances on top of monthly salaries. Many Assemblies will pass anything the Executive desires as long as there is sufficient pork for the members.
The other major betrayal has been by Non-State actors. The 2010 Constitution was fought for and pushed by an alliance of Non-State actors including the religious sector, civil society, and the media. Unfortunately, after the Constitution was promulgated, this coalition left the work of ensuring its implementation to government, forgetting that government had never been the owner of the Constitution.
No wonder there has been disappointment that in ten years, the promise of the Constitution has not been met. This coalition was supposed to create vibrant and effective mechanisms for monitoring the implementation.
They were supposed to increase civic awareness and empower the people to enable them hold government accountable.
Instead they left the work of civic education to government, which generally has little interest in an empowered citizenry.
The people are thus helpless and hopeless, unaware of the tremendous power the Constitution grants them.
As we go into our second decade of implementation, my hope is that these, and other institutions that have not lived up to the spirit of the Constitution would take time to reflect, have a Damascus Road moment, and live up to the demands of the Constitution for a better Kenya. It is the least that We the People, deserve.
-The writer is an advocate of the High Court