It’s been 10 years since we promulgated the Constitution. Yet, we still struggle with its implementation. While the event promised a new dawn of constitutionalism, rule of law and socio-economic advancement, there is little evidence to show for these aspirations. According to some indicators, we are even worse off. How come it is so difficult to have a sound government in spite of our spectacular document?
It is not enough for the constitution to be good; it must be homemade and fit into the psyche of those it governs. It must represent their truest wishes, however perverse, and not merely collate best practices from jurisdictions that do not share (our) characteristics. The constitution has to emerge from society and not be cosmetically superimposed on it. In my opinion, the Constitution of Kenya 2010 is a good document, but it is not Kenyan.
Like any contract, for parties to abide by its terms, they must be directly involved in its creation – the wording, meaning and implication of its clauses must come from the people. Kenyans cannot simply assent to a document prepared elsewhere and then claim to own it. Otherwise they soon discover that either their wishes were misrepresented or that what they signed up for is totally different from what they intended. Wanton defiance then becomes the norm.
This is what is happening in the country. For starters, Kenyans thought that they were exchanging a presidential dictatorship for a hierarchical separated government in which players would not be afraid to act quickly and decisively on corruption. They were wrong. Instead of a swashbuckling presidency we have a slow burning system which even the smallest of decisions requires the ‘cooperation of all players’. The President cannot sack people on whim without the small matter of due process being considered, and that makes Kenyans sick.
The hot topic thing out there today is the clamour for constitutional reform through the Building Bridges Initiative. The intention is to cure our love affair with the presidency which mischief ironically, the constitution sought to deal with in the first place. The essence of devolution was to guarantee the equitable distribution of resources without having to rely on presidential goodwill. Yet judging the manner in which the initiative for amendments has gripped the nation, Kenyans aren’t less in love with the top seat than they were ten years ago.
Even more so, we seem to have misunderstood devolution as creating semi-autonomous states that would be self-sufficient. And when we discovered that it was in fact not possible due to the little income each county could generate, we started squabbling over the division of revenue from the national government. A small problem with an obvious solution has become rather complex because legislators and a section of Kenyans do not appreciate the concept of equitable sharing as clearly demarcated in our laws.
A decade later and still government cannot wrap its head around the two thirds gender rule. You’d be hard pressed to find a better example of disconnect between good and actual practice, reality versus fiction/fantasy. Equitable representation is good, but if Kenyans really wanted it as laid out in the Constitution, they would have found means of ensuring so or better yet, simply voted in (wo)men without needing a constitutional provision to shove it down their dry throats.
Our constitution is liberal and democratic in nature but the Kenyan society is nothing close. The idea was that this constitution would maintain society as it is while safeguarding minority rights and freedoms – which is a good thing because everyone would be protected. But when confronted with barbed problems like sexual and religious rights, judges tend to reflect the mood of the society by rendering conservative decisions. Today, a Kenyan homosexual cannot marry from his orientation or display his affection in public and consequently have no access to family rights, health and a host of other freedoms in a supposedly equal world.
Good constitutions must be necessarily home-grown. Ironically, what gives ours international credence is not its Kenyanness but the fact that it bears all the hallmarks of what is universally accepted as a ‘pioneering constitution’. And therein lies the problem.