“Various calls have been made to amend the Constitution. Many of these demands are aligned with short-term political needs. A constitution, being the soul of a nation and the heart of our state, is an eternal charter. It should never be subject to political expediency. At five, our Constitution is still fairly new. Like a new pair of shoes, it may pinch occasionally. That is no reason to throw away the pair, or remake them into open shoes” – Uhuru Kenyatta
As stated in the preamble to the Constitution, five years ago, Kenyans adopted and enacted a new constitution in recognition of their aspirations for a government based on the essential values of human rights, equality, freedom, democracy, social, justice and the rule of law. Whereas majority of the provisions of the new Constitution came into force on August 27, 2010, many other provisions were either to come into force or to be implemented over a five-year period as set out in the Fourth Schedule of the Constitution.
Most importantly, in real terms, the principal mandate of implementing the new Constitution was reserved for the National Government and the Parliament elected under it. As it turned out, in March 2013, the Jubilee Coalition won the first elections under the new law; for better or for worse, the implementation of the new Constitution will define its legacy. In this article, I wish to offer my preliminary views on the record of the Jubilee administration in implementing the Constitution, measured against three broad yardsticks.
Constitutionalism and the rule of law
When they were elected into office, President Uhuru Kenyatta and his deputy William Ruto were facing crimes against humanity charges before the International Criminal Court. It is therefore understandable that many people wondered how the Jubilee government could be counted upon to observe fidelity to the Constitution and enforce the rule of law. Two years later, it is a pleasant surprise that broadly speaking, Jubilee administration governs in accordance with the law, and most importantly, no systematic and conscious campaigns or attacks have been launched to subvert or overthrow the constitutional order. Ironically, a careful reading of Cord’s Okoa Kenya constitutional amendments proposals leaves one with the distinct impression that contrary to popular impression, the Cord principals do not truly believe in Kenya’s new Constitution, and so had they won power in 2013, then in all probability serious schemes to remake Kenya’s constitutional order would be underway today.
From the standpoint of the rule of law, none of the three arms of government are operating at optimum level or with expected competence. To start with Parliament, it is disheartening that even after it doubled in size, it rarely manages its quorum of 30 members. Even worse, the quality of the laws being produced is fairly low and quite often infected with pettiness and sectarianism. Moreover, Parliament has once again extended by one year the period for enactment of critical laws to implement the Constitution. Probably previous parliaments have exhibited similar failures. However, what is new with the current National Assembly is that the level of its debate is remarkably low and public spirited law makers are conspicuous by their absence.
This sorry state of things equally applies to the judiciary. First, let me observe that the Kenyan High Court has generally performed well and the quality of its judgments – particularly in public law matters – is commendable. The same is not true with some decisions of the Court of Appeal and certainly the Supreme Court. In electoral matters, we have noticed with amazement the old juridical opportunism and lack of principle in deciding cases. There is still no guarantee that two cases based on similar facts and governed by the same set of laws will yield similar verdicts in the Kenyan Courts, particularly in electoral matters.
The cumulative impact of all this is that much as our Constitution holds great promise, it nevertheless remains a false prospectus when it really matters. Consider the following two scenarios. Since Kenya hates adverse reports, it no longer hangs capital offence convicts but it has ceased to be news in Kenya when a gang of robbers are sprayed with bullets whilst lying face-down in a bundle. Similarly, it is no longer fashionable to administer so-called corporal punishment in school but when the same teenagers go out for pick pocketing or robbery missions armed with knives and toy guns we think it is okay to mow them with AK-47s. Such hypocrisy in our society is simply incompatible with the rule of law.
State building and devolution
The full implementation of the devolved system of government coupled with the presidential system of government was bound to result into radical transformation of the Kenyan State. This is already happening; the outcomes are exciting to the majority, and sobering for experts and commentators who had illusions and high hopes in how devolution would shape up a new Kenya.
As we mark the fifth anniversary of the Constitution, it helps to underscore three of the nine objects of devolution of government set out in Article 174. The first object is to recognise the right of communities to manage their own affairs and to further their development. Second is to ensure equitable sharing of national and local resources throughout Kenya. Third is to enhance checks and balances and the separation of powers. Equally notable is Article 203(2) of the Constitution which provides as follows:-
For every financial year, the equitable share of the revenue raised nationally that is allocated to county governments shall be not less than fifteen per cent of all revenue collected by the national government.
To its credit, over the last three fiscal years the national government has fulfilled the legal requirement of allocation to county governments at least 15 per cent of all revenue it has collected in the respective years, whichever of the contested revenue statistics you may read and interpret. Regrettably, with the possible exception of Machakos Governor, Alfred Mutua, the founding governors have neither internalised nor taken seriously the obvious fact that devolution would turn out to be a failure unless county governments help their people to manage their affairs and further their development. In this regard county governments were expected to do their utmost to raise revenue locally and spur production.
Whereas the revenue collected by the National Government has been steadily increasing over the last three years, many of the county governments have collected lesser revenue than the local governments they succeeded, notwithstanding the greater taxing powers vested in county governments. To be sure, counties such as Nairobi, Mombasa, Nakuru, Kisumu, Kiambu and Kajiado can certainly collect higher revenue than they are currently raising or declaring. Whenever I travel across Kenya, I get the distinct impression that counties have become the new hotbeds of corruption and local residents are able to point out anecdotal evidence of corruption in the incredible new wealth of governors and senior county officials.
The point here is that if governors continue to perceive themselves as sovereign procurement and expenditure managers of the counties as opposed to leaders in governance and development (see Section 30 of the County Governments Act, 2012), there is a real danger that devolution may end up weakening rather than strengthening the Kenyan State. To my mind, weakness of the Kenyan State was the major shortcoming of the previous constitutional order in which corruption, poor governance, poverty and human rights abuses were the order of the day. In my understanding, one of the unstated major objectives of the new constitutional order was to prevent and guard against the spectre of state failure in Kenya.
To his enduring credit, President Kenyatta has done well to raise Kenya’s prestige and profile on the international stage. Increasingly, despite the challenges of terrorism, Kenya is becoming a preferred investment destination, a regional powerhouse and diplomatic leader in Africa. If it maintains its open society and nurtures its rule of law and democratic credentials, Kenya has every right to be hopeful.
To observe all this is by no means to deny the growing deficit in our economic production capacity. It should concern the President that manufacturing and agricultural production has recently been declining, thereby worsening unemployment. No doubt, the declining production and worsening unemployment are traceable to policy failures of the government and its macro-economic choices. Democracy cannot thrive in the midst of mass poverty and hopelessness, and so it behoves the President to do more to redress the current trend of declining production and unemployment. It is no rocket science that socio-politico discontent borne of unemployment and impoverished middle class will give impetus to political forces inclined to sabotage constitutional order and national unity.
Efficacy and capacity of government
If President Uhuru, his deputy Ruto, Chief Justice Willy Mutunga, the two speakers of Parliament and the 47 governors were a musical band, it would be apt to call it The New Babylon Ochestra. The political games played in Kenya’s capital give an idea of what Babylon must have been before its collapse. The devolution of power and enhanced separation and division of powers was intended by the makers of the Constitution to prevent despotism and promote broad-based democracy, spear-headed by competent and effective government. The simple reason is that after four decades, an authoritarian government was not a viable option for Kenya. Similarly, a broad-based democracy in which political power is devolved need not result in the governance chaos manifest in the new constitutional order.
The lack of harmony and overarching principle in the new constitutional order is self manifest. All over, Kenyan governors are wont to cry wolf about imaginary schemes by the National Government to roll back devolution than to put an honest day’s work to promote agricultural production. There is no evidence that members of the two houses of Parliament care about public good. Much legislation seeks to promote sectarian interest and short-term political expediency of the government in power, and, occasionally, populist concerns of this or that section of the people. The Supreme Court is yet to develop a credible legal philosophy and there is no mark of quality or high principle in most of its judgments that reflects its hallowed status. The Chief Justice himself says the demons of corruption still reside in the corridors of justice. The two speakers seem to revel in unending sibling rivalry. Even President Kenya is given to constant public lamentations about the capacity and work ethics of his cabinet and senior state officials. In short, Kenya does not have a competent and effective government that the new Constitution seeks to achieve. Who is to blame for this? Could it be the Constitution itself or simple leadership failure across the board?
If you ask former Prime Minister Raila Odinga and his Cord brigade, they will tell you that the new constitution is seriously deficient, hence the comprehensive amendments proposed by the Okoa Kenya movement. However, if you ask me, there is nothing obviously or fundamentally wrong with the content and structure of the new Constitution. On the contrary, the problems seem to be that as a society we may not be worthy of our constitution and certainly the politicians play the games of politics using the tactics and formulae of the old order.
Across the political divide, there is a dearth of leaders who truly seek to live by the new rules to secure Kenya’s prosperity and dignity. Fidelity to the Constitution must go beyond lip service and leaders should consciously strive to make good and right choices even when there is no immediate political dividend for doing so. Put differently, the new Constitution will not achieve its transformational objectives unless both the citizens and the leaders transcend the personal limitations, prejudices and ideas we needed to thrive under the old constitutional order. Is it possible to do this?
My answer is yes and the challenge begins with the President and the choices he makes both as Head of State and Government, and symbol of national unity. In a presidential system, the President is subjected to greater checks and balances than in a parliamentary system, but he has greater scope and political leeway to exercise his executive mandate. For starters, the President has greater say in appointing members of the cabinet and senior civil servants subject to parliamentary approval. Stated more dramatically, a cabinet of dunderheads is easily conceivable in a parliamentary system as the pool of talent is restricted to 100–200 politicians but such a cabinet is unforgiveable in a presidential system.
The way I see it, President Kenyatta is far from satisfied with the capacity and competence of his cabinet. For better or for worse, in the previous governments of Jomo Kenyatta, Daniel Moi and Mwai Kibaki, it was easy to pick out capable and highly competent men and women around them although some of them were not necessarily good people.
We could mention them: Tom Mboya, Mbiyu Koinange, Jeremiah Nyaga, Bruce Mackenzie, Mwai Kibaki, Nicholas Biwott, Musalia Mudavadi, George Saitoti, Simeon Nyachae, Robert Ouko, Mukhisa Kituyi, Kiraitu Murungi, Anyang’ Nyong’o, Martha Karua, Kalonzo Musyka, Sally Kosgei, Francis Muthaura and Richard Leakey. It is not easy to identify the contemporary equivalents of such capable hands in the Jubilee government.
The real tragedy to me is that the current composition of the Jubilee cabinet betrays a feudal motif more than it reflects competence in management of public affairs. No wonder the President has severally accused the cabinet of working at cross purposes and with a silo mentality. Three things are worth mentioning by way of conclusion.
First, the President has sufficient legal power and political talent to co-opt as many capable Kenyans as possible in the top echelons of his government to remedy the obvious deficit of capacity it suffers. Secondly, the choices he makes on major public matters, policies and legislative proposals should be founded in feasible legal and political philosophy. Deliberate effort should be made to encourage debate and consultations of major decisions and proposals at least to verify their soundness. It is important for the President to correct the impression that Jubilee is just an effective electoral machine whose government is not based on any recognisable organising principle.
Finally, the President must accept the principal burden of ensuring that current generations of Kenyans enjoy the dividends of a progressive constitution. The easiest way to do that is to secure freedom and economic prosperity for the greater majority. Looking back, the lasting legacy of President Kibaki is that during his era, so many Kenyans graduated from the ranks of official poverty to the middle class. The middle class is an important demographic segment in a working democracy.
Today the Kenyan middle class is on the retreat and its fortunes have been diminishing by the day. Like feudal societies of old and mineral-rich authoritarian states, the Kenyan society is fast becoming a two-class society: the rich and the poor. Such a society is a sure recipe for the return of authoritarianism and negation of the new constitutional order.^
Writer is a practising Constitutional Lawyer; firstname.lastname@example.org