By Ndung’u Wainaina
Since attaining independence in 1963, Kenya has undergone a constitutional crisis that has lasted over five decades. The rule of law has been sabotaged, subverted, incapacitated, undermined and alienated at every turn. Kenya’s post-colonial history was an era – it can be argued that it still is – of dictatorship and pervasive, rampant, malevolent, endemic corruption. The colonial administration reflected orders from Britain rather than consensus obtained from the local community leaders. This form of indirect rule kept governance at a distance, thereby centralizing, racializing and ethnicizing power.
The British administrative system was adopted, along with copy-pasted laws, by Kenya’s post-independence regimes, which emulated the autocratic tendencies of the colonial administrators. This can be seen in the fact that Kenya’s post-colonial presidents maintained the same untouchability and unaccountability espoused in the colonial leadership. When Kenya gained independence, it only inherited and worsened the colonial crisis of governance with dire infringements on human rights and calamitous consequences on its economy. The state has been ethnicized by the political ethnic barons,who continue to mobilize the society at large around ethnic lines while deeply enmeshed in high level corruption and impunity to accumulate wealth and power.
Kenya adopted a new Constitution in August 2010 with a view to building a new society and breaking away from the past. The various provisions, combined, address the challenge of inequities in development, poor governance, and service delivery. The Constitution provides opportunities for better development and realization of the aspirations of the people. The Constitution sought to put an end to the 1963 independence constitution which for decades served the few rather than the many. However, disagreements and impediments to its implementation continue to threaten what so many have died and suffered for. The factors undermining its application can be seen in the country’s post-independence history.
The new era, that is Kenya’s new constitution, was seen as a dagger to some and a beacon of hope to others, that would drag some Kenyans kicking and screaming and others dancing and singing into the new age. Upon promulgation, a crucial process was needed to audit and review all policies, laws and institutions in all sectors with the key objectives of which were to audit the county government policies and legislation with the view of analyzing their compliance with the Constitution, and to review all national policy and legislation with a view of ascertaining the extent to which they conform to the devolved system of governance and to identify gaps and challenges and make recommendations for harmonization and alignment. Further the unbundling and costing of the functions was to be done to ensure resources followed the functions and also remove all elements of duplications.
The constitution of Kenya was promulgated in a ceremony witnessed worldwide and truly gave the sense that Kenya had entered into a new era. This celebration however, was to be short-lived as the forces that had opposed the new constitution reared their ugly heads. The first dent on the Constitution happened during its promulgation day, when President Mwai Kibaki invited Sudan President Al Bashir (later ousted through a people’s coup and now being prosecuted for crimes against humanity), who was an ICC indictee. It was a big blot and signaled danger in the days to come.
The frustration that has become the thorn in the flesh of Kenyans is the process of implementation of the new constitution. It has been sidestepped, emasculated, undercut, diluted, destabilized, and has demoralized the public at large.
What was seen to be a bright future for our children has been raped and seems to be slipping from our grasp. The implementation of the Constitution is proceeding without a policy to guide implementation. Many of the laws required to facilitate effective implementation of the Constitution have also been enacted. However, many of them are too weak to further the letter and spirit of the Constitution.
The failure to develop a policy based on robust analysis of the process of implementation and the challenges experienced has had several consequences. Some of the laws passed have not been in line with the letter and spirit of the Constitution. Institutional conflicts over mandate, and general turf wars at different levels of government, have characterized implementation thus far. Dispute resolution has not been effective, owing to lack of trust, suspicions and mistrust between the two levels of government, as well as between the many players involved in implementation.
Both the National Assembly and the Senate have passed laws that tend to undermine the Constitution. The National Assembly has on several occasions passed laws that go against the text and spirit of the Constitution such as the Constituency Development Fund, in security, finance, media and communication, among others, which have been publicly cited as failing to meet the constitutional threshold, forcing the courts to declare them unconstitutional.
There is an absence of sufficient and meaningful public participation in making key decisions at both the national and county government level. Both levels of government have (deliberately) failed to provide sufficient and meaningful opportunities for people to effectively participate in issues that matter to them.
The failure to effectively unbundle functions is aimed at creating confusion in regard to devolved functions and their resources. This confusion led to a court case on the division of health functions between the two levels of government, with the court emphasizing the need to resolve issues regarding division of functions through mutual consultation and cooperation. The failure to restructure and align the old order of government especially ministries, departments and departments to accord with and respect devolution has had huge economic and financial implications.
Conflicts have been a common feature of inter-governmental relations. There has been minimal dialogue on how to address the conflicts in intergovernmental relations, thereby undermining the principles of the cooperative government envisaged in the Constitution.
Restructuring of the provincial administration is not yet complete. Despite sentiments that the administration is already restructured, the fact that the Ministry of Interior felt the need to develop a policy to guide the process is evidence that there are pending issues regarding the restructuring. Undoubtedly, the restructuring process touches on a number of stakeholders beyond the national government. These include the county governments, independent offices and institutions, the public who are consumers of national government services and the private sector, among other stakeholders.
There are certain prevailing practices of governance that negate the values and principles enshrined in the Constitution; they tend to claw back the gains made. Corruption and lack of prudence in use of public funds have never been more insidious. There is lack of effective enforcement of the law to constrain behaviour that threatens erosion of the principles of the Constitution. These and other factors continue to plague the implementation of the new constitution and form the priority for Kenyans of goodwill, who still fight to entrench the rule of law.
Firstly it is important to address the deeply ingrained culture of authoritarianism in the Kenyan state, which has been transmuted from Kenya’s colonial heritage. The Executive branch and the incumbency wield a lot of power and have refused to accept its changing role and responsibilities, thereby slowing the pace of implementation. The powers that be are in actual fact above the rule of law and exercise their powers in an arbitrary manner with prerogative and without discretion.
Secondly, the law in Kenya has not been stripped of all technicalities and Parliament exercises its coercive powers to rule the general public. Parliament has been passing laws to its benefits (consider their remuneration and CDF) while undermining other arms /organs of state through abusing its legislative powers.
Thirdly, with the Constitution, Kenya has attempted to change its legal and institutional framework, but the culture of subversiveness is so entrenched that it undermines the fundamental structure and functionality of the legal systems. The culture of state and public service impunity is so entrenched in the Kenyan psyche that it has grown into a malignant cancer.
Fourth, for decades, the political discourse in this country has been driven by vested political interests, non-reformism and tribalism, giving rise to special appointments. Though there has been a change in structure, the culture continues to be one that is reactionary and will denounce and oppose any attempts to create real and lasting change. This was exemplified when politicians proposed amendments to the Constitution of Kenya to alter the election date from August to December. The mismanagement and disagreements around this issue is hindering the dispensation process. This proposal in itself underscores the continuation of impunity and the lack of consensus on an election date threatens the very fabric of Kenyan society. Kenyans voted overwhelmingly for an August election but state actors are still trying to extend their terms in office in practice of their politics of the belly.
Fifth, the arbitrary passing of laws (example through omnibus Miscellaneous Bills) and corruption is a worrying prospect that threatens the realization of a new Kenyan society. Not only have members of Parliament been slow in passing Bills, but they are also out of touch with the letter and spirit of the Constitution. Various Bills have stalled in Parliament after being drafted, making it difficult to institute any real reform. The Parliaments are filled with non-reformers and are therefore inherently incapable of instituting a reformist agenda that is the new Constitution. National leadership is categorically not committed to the new order and looks to implement legislation that is of a low standard in order to protect the status quo. Parliament has continuously watered down the leadership and integrity law for self protection of politicians.
Sixth, the frivolous attempts at unnecessary amendments to the Constitution are severely hurting the implementation process. All amendments to the constitution must inherently enhance the Constitution and not undermine its general spirit. The amendments and disagreements are the result of competing interests. An example of such an amendment would be the provisions relating to the gender representation requirement in Article 81(b), which would ensure the full application of Article 27 and the not more than two-thirds gender principle.
Seventh, the processes of constitutional implementation are captured in the timelines outlined within the constitution itself. This has resulted in a rushed law and institutional reforms process where bills pushed through parliament have resulted in numerous errors and weaknesses creating disjointed, fragmented and subverted constitution implementation. This has fundamentally weakened the true sanctity of the Constitution of Kenya 2010 as it is now.
Eighth, there has been the slow implementation of the security and judicial reforms. One of the many drawbacks affecting the implementation of the constitution at the time of promulgation was the lack of a judicial arm capable of mediating the disagreements that arose. Prior to the Supreme Court being established, it was difficult if not impossible for the Judiciary to adjudicate any cases which warranted an interpretation of the new Constitution at the time of promulgation.
Ninth, there is a lack of resources as the bodies entrusted with overseeing the application and dispensation of the constitution have been unable to institute certain provisions for example with respect to the taskforce for devolution. There is a lack of synergy between the various elements and commissions in charge of implementing the constitution. The formation of the various commissions has not been enabled to function appropriately. The process has been politicized and lacks the authenticity needed to institute reforms.
Finally, the National Government and its agencies have exercised undue power leverage against county governments, including delaying and or cutting funds disbursements, enacting laws and taking administrative policy actions that counter the growth of devolution. There are a myriad national laws and policies that are not in tandem with the Constitution, which need to be repealed while others require amendments in order to ensure conformity with the Constitution. This is well noted in devolved sectors such as health, agriculture, public finance, trade and industry, land, physical planning, urban development, natural resource management, water and roads which are functions that substantively fall under the jurisdiction of county governments.
There are serious notable ambiguities in legislation, persistence of the old order in terms of laws, policies and practices across all sectors, inadequate consultation and cooperation between the two levels of government that can support and facilitate holistic development of laws and policies, and a dearth of capacity to facilitate effective development of laws and policies that are clear, coherent, comprehensive and compliant with applicable constitutional provisions. Further, the national government has systematically been passing laws and policies that essentially attempt to recentralize devolved functions back to the National Government contrary to the Constitution, prompting the Senate to take the National Assembly to Court several times for passing laws that undermine devolution.
It is possible for Kenya to move forward, but citizens must exercise their constitutional rights and the right to self-determination to enforce a free and equal society as provided in the Constitution of Kenya 2010 — a society where the rule of law is the standard to which all institutions and persons
— Writer is Executive Director, Africa Council on Human Security; @NdunguWainaina