Katiba 16: Ruto scorecard: from katiba critic to custodian

President William Ruto [File]

President William Ruto's scorecard on implementing the Constitution, 16 years on, has been placed on the weighing scale, with skeptics casting doubt over his performance so far.

The Constitution 2010, described as one of the most progressive laws, has had its fair share of challenges in implementation, including various attempts to amend it.

While some areas in Kenya’s supreme law, for instance institutional and policy are said to have made some progress, others like human rights, accountability, separation of powers and public participation have raised a myriad of issues.

The human rights aspect has particularly been described as one of the weakest areas in implementation, with Ruto’s government facing some of the strongest criticism, accused of disregarding basic human rights and freedoms.

But probably, the fact that Ruto was one of the opponents of this Constitution has come back to him. Other than publicly campaigning against its passage, he voted against it, arguing that it had some provisions that were harmful to Kenyans.

During that time, Ruto argued that the Constitution, if passed without amendments, would breed more inequalities instead of becoming a catalyst for prosperity.

Ruto said that, what they differed on was when amendments should be done, explaining that while the ‘No’ side wanted it done before the referendum, the ‘Yes’ side said changes should wait until after the draft is passed.

And when the Yes side won with about 68.6 per cent of the total vote, Ruto recognized the win saying that the outcome reflected the democratic choice of Kenyans.

Fast forward 12 years since the Constitution was passed and Ruto became the fifth President, which also meant ‘defending and protecting’ the supreme law.

Last year, President Ruto inaugurated August 27 as Katiba Day, describing it as a day of solemn reflection, celebration of progress and renewal of steadfast commitment to the 2010 Constitution.

“Born of painful lessons and the struggles of generations, the Constitution stands as our solemn vow of never again; a covenant to build a just, inclusive, and democratic nation where dignity, unity, and equity are the guiding lights,” Ruto said.

For 15 years then, Ruto said the transformative charter has delivered devolution, safeguarded fundamental rights, advanced education, healthcare, and housing, and strengthened institutions that protect justice and democracy.

“These hard-won gains must be jealously guarded against the corrosive threats of corruption and disregard for the rule of law. As President, I reaffirm my oath to uphold, protect, and defend the Constitution. I call upon every arm of government, and every citizen, to do the same. Together, let us secure justice, deepen democracy, and build a prosperous, enduring Kenya for all,” Ruto said.

But his score card and word to defend the Constitution has been questioned, amid concerns over its total disregard.

Ekuru Aukot, who served as the Secretary of the defunct Committee of Experts (CoE) on Constitutional Review, which played the pivotal role in drafting Kenya’s 2010 Constitution said Ruto led the ‘No’ campaign against this constitution.

But over and above that, Aukot said that Ruto did not tell as it was during that campaign about certain things.

“For example, he even said this constitution is ungodly. So he never believed in the constitution in the first instance. And even now when he swears to protect the constitution, yet you can already see how many court orders have been ignored by his administration,” Aukot told the Standard.

Aukot also recounted the time he led the litigation against deployment of police officers to Haiti, referencing Chapter 14 of the constitution, which is about national security.

Although they obtained a judgment that prohibited their deployment, because they are supposed to serve Kenyans within the jurisdiction of Kenya, it was never honored.

“He (Ruto) sent them to Haiti against that judgment, which they never even appealed by the way. So I don't think Ruto believes in it. If you first of all lie about the letter of the constitution, it's so difficult for you to even invoke the spirit,” he said.

“There is always the letter and the spirit of the constitution. Where the letter is not clear or could be ambiguous, then you now go to the spirit. What the framers of the constitution intended,” he adds.

He made reference to Chapter 6, on leadership and integrity, regretting that Ruto's administration falls far behind in that context and ‘there is absolutely even comparison’.

“I don't think he believes in the constitution to begin with. The constitution gave him power, but it's just because Kenya's politics is so commercialized so hardly does he believe in the constitution and I do not think Ruto has even attempted to implement this constitution,” he explained.

On issues like right to education, he said a look at his campaign from 2013 up to 2022, indicates that Ruto has not been truthful about ‘basic things being basic rights’ but nothing much has been implemented.

“If you look at progressive realization, for example, of rights, what policies can you actually say that Ruto's administration has put in place? A person who says to the police to shoot and maim...then there is Interior Cabinet Secretary, Kipchumba Murkomen...and this is repeated many times,” he said.

Aukot said Ruto is the commander-in-chief and Head of the government and by the time the police are actually shooting and killing, then things like disappearances, which the constitution totally opposes, the President has justified that.

“...for those who are killed, we can pay you yet there is no price to life, human life. And then, how far back do you go? If you want to go historical injustice and human rights violations, then where is the cutoff date to compensate? There are many changes, right from even 2007, I think it commercializes,” he stated.

“For him, the constitution does not exist, actually, he cannot even be rated. I don't think I can rate him, based on what now? I mean, there has to be some really tangible things, especially if you think along the Gen Z demonstrations, and the order to shoot and maim how can you say such a person respects the Bill of Rights? No, he doesn't.

He also said devolution is yet another issue that has experienced its fair share of challenges, with Aukot regretting loss of funds appropriated to counties, as documented in Controller of Budget and Auditor General’s reports.

“Chapter 12 is very clear that public money should be used prudently. How is the President, who is just dishing out money, even justifying the source of that money? I find it so difficult to rate him because I don't see anything tangible.

Former Attorney General, Justin Muturi also says Ruto has done poorly in terms of implementing the constitution, as he cited devolution and that he has ignored the fourth schedule

“There's a fourth schedule to the constitution, these functions which belong to the counties. Governors come to beg for development. Things like development of markets, it is not a national government function. That's a county government function. It is devolved,” Muturi says.

On education, he explains that the responsibility to do all infrastructure in public schools rests in the cabinet secretary for education but the president has been using members of parliament through Constituency Development Fund (CDF).

Yet, the Supreme Court already ruled that CDF, as currently structured, is in violation of the constitutional principle of separation of powers.

“So he continues as if the Supreme Court decision is of no consequence to him.  In terms of implementing the constitution that speaks volumes,” he states.

According to Muturi, Ruto has emasculated the constitutional commissions to become places for political rejects and his cronies.

He says the reason why constitutional commissions were set up was to assist in monitoring governance issues but some of those who sit there today are his people while others are in broad-base.

“At the end of the day, their independence is heavily compromised, which means that he is the one who has compromised those constitutional commissions. It is no wonder they are not able to do what they are supposed to do.”

The security agents, particularly the police, are supposed to be dependent but things have changed but Muturi said that Ruto has been deliberately trying to undermine it.

He made reference to the County Government Act, saying there are structures of village elders and committees are supposed to be under the devolved units.

“You saw the elders the other day, what he is doing is, he is trying to recreate the provincial administrations of yesteryears, which were under the former constitution, he is creating it deliberately through village elders, who are being paid by the national government thus undermining the whole concept of devolution.”

“First of all Ruto opposed this constitution because he is the greatest admirer of the imperial presidency, which was in the former constitution. And it is for that reason that he is trying to recreate it because he never believed in this constitution. This constitution is heavy on dispersing powers and resources but he doesn't want that, he wants the power to be concentrated back into the presidency,” Muturi explains.

Makueni Governor, Dan Maanzo says that there has been double speech in the country, led by the President because he seemingly does not believe in the Constitution and does not understand it.

“The constitution talks about preservation of life, freedom of expression and to go to any part of Kenya but when his own Government blocks people from accessing certain parts, when he says there will be no goons and his own works with goons, kills people it means there is no value for life,” Maanzo says.

When confusion is created in the education sector, which equalizes all Kenyans, say nothing about striking nurses and Kenyans continue to suffer, Maanzo said it means Ruto is not working for Kenyans and wants to maintain power.

Similarly, he accuses Ruto of watering down institutions set out in the Constitution.

“The institutions are no longer independent and it is important Kenyans change this, which is best done through the vote. For young people who have not registered as voters, they should participate in decision making,” Maanzo notes.

He rates Ruto a partly 10 per cent in terms of implementing the Constitution saying he is operating as if he is still using the old law and Parliament is a rubber stamp and cannot be checked.