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Spirit of the Constitution has withstood sustained attacks 11 years since promulgation

NATIONAL
By Brian Otieno | August 27th 2021

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]

Eleven years ago, then-President Mwai Kibaki and former Prime Minister Raila Odinga led the nation in promulgating the 2010 Constitution.

The document, the duo acknowledged, was a result of a sustained push that predated their grand coalition government.

After futile attempts to amend the law spanning over 20 years, Kenyans overwhelmingly voted for the 2010 Constitution in a referendum – a document that captured their aspirations and, as Kibaki and Raila said, those of the founders of the nation.

“This new Constitution is the embodiment of our best hopes, aspirations, ideals and values… from today onwards, the people of Kenya should embrace a new national spirit, a spirit of national inclusiveness, tolerance, harmony and unity,” said Kibaki during the promulgation.

“Today we close a long chapter in our history. We put repression, exclusion, dictatorship and heroic struggle behind us once and for all. We have opened a new page in our book. On that page we begin writing the story of an equal and just society,” Raila said.

From introducing devolved units to changing the structure of the government, the Constitution was lauded as fixing the inadequacies of the independence document.

In every chapter of the new Constitution were intentions that Kenyans had communicated to its framers. Such intentions and aspirations are referred to as the spirit of the Constitution, since they may not be expressly stated in the text of the Constitution.

“It is a mirror that is reflecting the national soul; the identification of ideas and aspirations of a nation, the articulation of the values binding people and disciplining its government… We dare say that there is a spirit that relentlessly pervades this provision.

"As a consequence, that spirit, which is always speaking, must be discerned as an integral part of interpreting the provisions of the constitution,” Court of Appeal judge Patrick Kiage described this spirit in his judgement on the Building Bridges Initiative (BBI).

Patrick Kiage. [Collins Kweyu, Standard]

These intentions are captured by the Constitution and are reflected in the national values and aspirations, which include the rule of law, democracy and participation of the people, human dignity, equity, social justice, sharing and devolution of power, good governance, integrity, transparency and sustainable development.

To counter inequity in resource allocation and access to essential services, Kenyans voted for creation of county governments.

To solve gender inequity, Kenyans proposed to entrench the two-thirds gender rule in law. The principle was meant to give women – perennially marginalised – a fair chance at leadership.

As one of the means of preventing autocracy, the Constitution affirmed the principle of separation of powers by creating three independent arms of the government – the Executive, Legislature and Judiciary.

Further, to enhance transparency, Kenyans insisted that they must be involved in the decision-making process of government through public participation.

The recent selection of four nominees to the Independent Electoral and Boundaries Commission (IEBC) by the president raised questions of transparency, given the selection panel never divulged the names of the eight persons it had selected and their interview scores.

The letter and spirit of the Constitution are so intricately intertwined that a violation of either would breach the other.

For instance, Parliament’s failure to enact legislation that would implement the two-thirds gender principle contravenes the Constitution that created the provision, in turn violating the will of the people.

Parliament failed to enact legislation that would implement the two-thirds gender principle.  [Elvis Ogina, Standard]

Conversation on the spirit of the Constitution has popped up several times in recent weeks, with debate on the BBI proposed amendment of its basic structure spurring it further.

This is occasioned by the reality that an audit of the text of the Constitution is incomplete without one on its spirit.

Observers contend that while the 2010 Constitution has been largely implemented, the spirit has somewhat been side-stepped.

"The Constitution of any modern democratic state dictates that it should be a living charter,” says Law Society of Kenya (LSK) president Nelson Havi, adding that 90 per cent of the Constitution has been implemented.

“Our Constitution has lived up to its expectations, given that those in office who have led attempts to inconvenience the Constitution have suffered setbacks as a result of judicial pronouncements.”

Havi cites the security amendment laws, which the courts found to be unconstitutional for violating the rights of Kenyans.

He also points out attempts by the Executive to interfere with the independence of the Judiciary, such as President Uhuru Kenyatta’s attempt to sway the selection of the Chief Justice and the appointment of judges.

“The Constitution has a self-detonation device, for instance, in the matter of gender parity, people did not expect CJ to advise president to dissolve Parliament. The spirit is powerful and it has shown that it can withstand obstacles thrown its way,” says Havi.

Charles Nyachae, the former chair of the Commission for the Implementation of the Constitution (CIC), says the culture of constitutionalism has grown worse in recent times than it was when the CIC folded in 2015.

“In our end-term report of 2015, we acknowledged that Kenya had made good progress in enacting laws. But we conceded that, as a country, we were yet to inculcate a culture of constitutionalism,” says Nyachae.

Former CIC chair Charles Nyachae. [Jonah Onyango, Standard]

He highlights the Executive’s sustained disregard of court orders, the president’s delay in replacing IEBC commissioners, as well as the failure to fully implement public participation, as an attack on the spirit of the Constitution.

“Such fundamental issues like upholding the rule of law by disobeying court orders cannot be rationalised," he says. The former CIC boss lauds the civil society and the Judiciary for “protecting the Constitution”.

“The framers of the Constitution contemplated that by the end of the transitional period, various arms of government, particularly Parliament, would have taken up the task of protecting the Constitution. But Parliament seems to lack the gravitas to implement the Constitution,” says Nyachae.

Lawyer Abdikadir Mohamed – who chaired the Parliamentary Committee on Constitutional Affairs that oversaw the writing of the Constitution – rates the implementation at 60 to 70 per cent.

He says the Jubilee administration has performed poorly in implementing the spirit of the Constitution, since President Kenyatta and his deputy William Ruto lack “strong credentials in the struggle for constitutional change”.

“Their case at the International Criminal Court (ICC) set the wrong tone for a rule based on constitutionalism,” he adds.

Mohamed points out the interference with independent institutions such as the National Police Service Commission (NPSC) and the National Lands Commission (NLC) as amongst the violations of the Jubilee government on the spirit of the Constitution.

“The institutions were designed to reduce the powers of the president and prevent an imperial presidency. The police commission was meant to ensure the administration does not misuse the police,” he says.

He further criticises the political class for sabotaging the implementation, citing the repeated calls to disband the IEBC every electoral cycle.

Senate Minority Whip Mutula Kilonzo Jnr says the supreme law has been tested, especially on representation, the Bill of Rights and financial matters.

“Frankly speaking, the bulk of the Constitution has been implemented. Chapter Four on Bill of Rights, Chapter 7 on representation, Chapter 11 on Devolved Government and Chapter 12 on Public Finance. The basic human rights are guaranteed,” says Mutula, who is a member of the Senate Committee on Justice, Legal Affairs and Human Rights.

Senate Minority Whip Mutula Kilonzo Jnr. [Boniface Okendo, Standard]

“This is why when the BBI sought to usurp the independence of the Judiciary by introduction the office of the ombudsman, it was dead on arrival as it would have reversed the gains made,” he adds.

He, however, argues that Chapter Six (Leadership and Integrity) has been watered down.

“It is used as an academic chapter. The Constitution is self-implementing and self-executing. The robust nature of the law is the issue of public participation that saw two county assemblies faulted for violation of the law in considering the BBI Bill,” says the senator.

A 2015 socio-economic audit of the Constitution by former Auditor General Edward Ouko asserted that Kenyans wanted their leaders to be persons of unquestionable integrity. The same message was relayed by Kibaki and Raila 11 years ago before a packed Uhuru Park.

If the remarks by Mutula on Chapter Six of the Constitution are of significance, then it would mean the intentions of Kenyans – who endorsed the provision – have been betrayed even with the passage of six laws to address the matter.

“The biggest liability over the failure of the implementation of the Constitution is taken by Parliament because they have allowed the president to legislate when that function is not his,” says Havi, who argues that Uhuru has emasculated the Legislature, which is in itself a violation of the principle of separation of powers.

International Centre for Policy and Conflict Executive Director Ndung’u Wainaina blames politicians for sabotaging the Constitution.

“We gave the task of implementing the Constitution to the wrong people because they never believed in it,” says Wainaina.

He argues the Police Service, for instance, has been turned into a “regime policing instrument”, violating the people’s will to keep it independent.

Download the BBI Judgement by all seven Judges - Civil Appeal No. E291 of 2021
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