BY DR WILLY MUTUNGA
A Metaphor
During a discussion with a Governor friend on the progress and retrogression of the implementation of the 2010 Constitution, he used the following metaphor: The Constitution gave birth to a beautiful child destined to grow and transform our Kenyan society in all its ideological, social, economic, cultural, spiritual and political aspects. The ultimate goal for this transformation would be to mitigate a neocolonial status quo, into a free, just, equitable and egalitarian, peaceful, prosperous, ecologically safe and democratic society. Such a society would lay a firm basis for a national discussion of its weaknesses and consequently build a firm foundation based on the dialogue of yet another better society. At that moment it would not be a surprise that a new constitution would be promulgated.
We the people of Kenya, after creating the Constitution, not only imposed it on the ruling elite but we also handed over the baby to the same elite to bring it up. We handed over the baby Constitution to a political leadership of child traffickers as well as their body parts. A progressive Constitution requires a progressive political leadership for its patriotic implementation. We wrongly put the cart before the horse and this situation HAS TO BE reversed. The struggles of constitution-making do not end with its promulgation. Its implementation continues the struggles between the anti-constitution forces and those forces that call for its robust implementation.
As we come to the tenth anniversary of the promulgation of the 2010 Constitution on August 27, 2020, the struggle for its implementation continues unabated.
Genesis of struggles for the making of the 2010 Constitution
The Independence Constitution gave birth to a neocolonial system that ensured the colonial state remained intact. Indeed, the multi-racial and multi-ethnic ruling elite under that Constitution continues to protect foreign interests, including the British colonial powers that never left Kenya.
herefore, it is not surprising that the Independence Constitution was resisted from the time of its promulgation. The opposition party, the Kenya People’s Union (KPU) opposed the neocolonial status quo. Both Jaramogi Oginga Odinga’s books, ‘Not Yet Uhuru’ and Bildad Kaggia’s ‘The Roots of Freedom’ chronicle this fact. Both authors were founding members of KPU.
Underground political formations such as The December Twelfth Movement and Mwakenya, and their publications ‘Mwuguzi’, ‘Cheche’, ‘Pambana’, and ‘Mpatinishi’ resisted the neocolonial state and its policies. The so-called Second Liberation movement was premised on the repeal of Section 2A of the Constitution that decreed the supremacy of one party dictatorship. The Movement also sought a Constitution that would be aligned to the promise of a multi-party democracy while civil society organisations and opposition political parties continued the struggle for a new constitution. When the Moi-KANU dictatorship was defeated in 2002, the Kibaki-KANU-NARC dictatorship could not resist the people’s movement for a new constitution, and the 2010 Constitution was promulgated on August 27, 2010.
The vision of the 2010 Constitution: gains and challenges
The rejection of the neocolonial status quo is clear from the vision of the 2010 Constitution: the supremacy and sovereignty of the Kenyan people as the rulers with powers to recall their representatives in Parliament; gender equity and equality; the three arms of government as deriving their authority from the people; political leadership comprised of women and men of integrity; national institutions that are independent and whose authority is derived from the people of Kenya; the banning of the politics of division; institutionalised, de-personalised, and democratic political parties signaling the end of 47 years of electoral gross injustices.
We have a progressive Bill of Rights decreeing the whole gamut of political, civil, economic, social, and cultural rights; decentralisation and democratisation of the imperial presidency; devolution; holding institutions, particularly those in finance and security, accountable to the power of the Constitution; equitable distribution of national resources; and our major resource, land, mitigated in the reduction of the duration of leases given to foreign interests to 99 years and the creation of another land law regime that is communitarian to co-exist with land that that is already a commodity. The co-existence of two land tenures is envisaged as a strategy to building a future land tenure system based on access and use of land to all.
The neocolonial status quo served strong, dangerous, greedy and corrupt foreign and national interests that saw the promulgation of the 2010 Constitution as an inconsequential cease-fire. This position has been resisted, reflecting the continued struggles in its implementation where there have been both progress and retrogression. Firstly, the imperial presidency has not been fully democratised and decentralised. Its restructuring has been resisted. It continues to oversee opaque sovereign debts, corruption and feeding the colonial and neocolonial beast of the machinery of violence against the provisions of the Constitution. Both the Treasury and the Security apparatus are still departments of the imperial presidency contrary to the decrees of the Constitution. There has not been consistent support for devolution from the imperial presidency and institutions have become less independent while others have become moribund. No strong checks and balances exist. Communal land continues to be seen as a commodity, resulting in gross inequalities.
We have witnessed the return of intra-elite struggles christened various names: Tanga Tanga, Kieleweke, Tinga Tinga, Manga Manga, BBI, Dynasties, and Hustlers. These struggles are a warning to possibly violent 2022 elections. They also reflect a ruling elite that continues the politics of division (ethnic, religion, gender, generation, region, clan, class, occupation and race) and that is extremely callous in its politics of inhumanity. It is a class that continues to act as loyal comprador class (agents) of foreign interests to the West and East. The forces against the implementation of the Constitution are headquartered in the bosoms of the Kenyan elite.
Devolution has given Kenyans the imagination that resources will be shared equitably; Kenya will become peaceful and stable; and projects of state building and nation building will be strengthened. Under devolution, baby steps have been taken towards ending marginalization of counties and communities. In some counties, the sharing of state power with the grassroots through public participation has happened. Leadership in some counties has also resisted corruption.
Although the jurisprudence on Chapter 6 of the Constitution (Leadership and Integrity) is yet to be settled in the Supreme Court, we have witnessed progressive jurisprudence on the protection of devolution. Also included are the implementation of the Bill of Rights (in particular political, civil, housing, evictions and public interest litigation) and the overall protection of the independence of the Judiciary. We have also witnessed this positive trend thwarted by the imperial presidency and Parliament starving the Judiciary of funds. Court orders have been disobeyed weakening the Constitution and the Rule of Law. Both the imperial presidency and neocolonial parliament still believe national resources belong to them, and that they are not accountable as holders of the taxpayers’ money in trust for the people where both institutions derive their powers from.
We have witnessed robust protection of the Constitution from civil society groups, both middle class and the grassroots. We have witnessed movements that are calling for alternative leadership in the movements of transformation and political parties. We have heard the clarion call “We do not want reforms from the current political leadership; We want the political power to carry out authentic reforms. We are now the authentic people’s opposition.” The emancipatory spirits of Mau Mau, Independence movements, movements against neocolonialism, Saba Saba and Limuru have been resurrected. In all these coalitions, the centrality of the Kenyan youth is visibly signaling new political demands from those who have been marginalized by the system.
Has COVID-19 breathed life into the struggle to implement the Constitution?
Indeed, the COVID-19 pandemic has provided a great opportunity to continue the struggles for the implementation of the 2010 Constitution. I believe the pandemic has answered the ever-present political question in Kenya: who are the friends and the enemies of the Kenyan people?
The pandemic has further exposed the inhumanity of the state and the elite political leadership in its actions during this crisis: extrajudicial killings; demolition of the housing of the poor in Kariobangi and Ruai; disobedience of court orders in regard to the pandemic; refusal to progressively realise public goods under Article 43 of the Constitution (food, water, education, social security, health, sanitation); and lack of response in social justice philanthropy from the country’s billionaires and multi-millionaires (except for two) and their infamous foundations.
If any evidence was needed to show how uncaring our state and the ruling class are towards the majority of our population, it is in their demands to the poor to wash their hands and fail to provide them with water and soap from the resources they both hold in trust for the people. Callous in the extreme was to oppress the poor for not wearing masks, while lockdowns and curfews became death sentences to those who had no food and were looking for casual jobs. No resources were committed to implement the right to health for all. Indeed, all we heard were the familiar tales of corruption as the pandemic gave opportunity to the elite class to continue their unquenchable thirst for theft and debts.
One great outcome of the pandemic has been to hasten the national discussion on the formation of alternative political movements and leaderships. There has been overwhelming virtual meetings and launches in no small measure, ironically, because of the facilities given by surveillance capitalism!
Alternative transformative movements are growing in strength. Embryonic alternative political parties exist, their mobilization and organization energized by the pandemic. The merger of the movements and these political parties are now beyond the margins of their existence. The old normal before the pandemic, which was neither acceptable nor sustainable, is not guaranteed a further lease of life.
In conclusion, indeed the pandemic has breathed some life into the struggles for the implementation of the Constitution. Calls by the elite to change the Constitution have been met with those of ‘Tekeleza Katiba’/Implement the Constitution. The good news to me seems to be that this gigantic struggle will result in the baronial narrative, which has remained unchallenged for the last 57 years, being resisted with strong counter-narratives. Ironically, it is these narratives and alternative movements and political leaderships that will protect the baronial elites from themselves and their revenge politics and guarantee national peace that the same elite has shown as incapable/unwilling to provide.
The struggle for the implementation of the Constitution continues!
— Author was Chief Justice & President of the Supreme Court Republic of Kenya, 2011-2016.
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