It is not just in Kenya that constitutional democracy is under sustained assault. Different events around the world point to a similar trend: the storming of the Capitol in Washington in December 2020, the coup in Myanmar, the changes of regime in Poland and Hungary, the overall failure of the Arab Spring movements and the rise of toxic nationalisms around the world all make it difficult to see a bright future for constitutional democracy under the rule of law.
Kenya’s constitutional democracy, which finds expression in the 2010 Constitution, is often hailed as an exemplar of what modern democracy should look like. But soon after its inauguration, we resorted to mutilating it with no regard for the people who fought so hard, with some losing their lives, to see it come to fruition.
In place of openness, accountability and responsiveness, we have adopted and resorted to shadiness, corruption and disregard for the basic tenets of law. The politicians who wield power have become supreme laws unto themselves, ruling as they please and governing in a manner inconsistent with the constitution. And the citizenry, bogged down by economic misfortune and divided along class lines, trundles along.
The Executive arm of government spits on the principle of separation of powers, scoffs at and bullies its way out of checks and balances that seeks to regulate its exercise of political authority, and the so-called fourth branch of government in the form of Chapter 15 Commissions has been whittled down to an appendage of the Executive arm they are supposed to check. Our courts, once impartial bastions of democracy and justice, have gradually lost their mojo.
If we want to continue to live in a constitutional democracy under the rule of law, we must double our vigilance. The institutional damage being perpetrated by none other than the government itself will take years to repair.
10 years after our so-called new dawn, we are being asked to sanction a premature constitutional amendment by way of the Building Bridges Initiative, our imaginations transfixed by the audacity of a political elite that cannot fathom life outside of power. We are living in the era of the phenomena that we have come to call State Capture.
More recently, ‘covidpreneurship’ has made it apparent that there exists a shadow state created for the sole purpose of enriching an intricate web of patronage networks held in position by overarching allegiance to the Uhuru Kenyatta presidency. It is impossible to estimate the value of the looting of state coffers that happens, but the figures of public debt accumulated since 2013 – and the President’s admission that government loses Sh2 billion daily – paints a picture of looting to the trillions since the Jubilee government took power.
We cannot proceed like this.
Properly implemented, constitutional democracy is a phenomenal form of governance. While it may be prone to assault in the proportions that the Jubilee regime – and others elsewhere – has meted out, it is nevertheless resilient, and is the model that best serves the interests of the poor and the marginalised, however haltingly.
The Jubilee government has given us every reason to doubt constitutional democracy as viable. Its commitment to the rule of law is ambivalent at best. An examination of the BBI constitutional amendment proposals show that its proponents seek to secure dominance and control of all levels of power in society. This is not the language of constitutional democracy; it is the language of an ideology tried, with regrettable results in countries like North Korea and China, and now being experimented with in countries like Hungary, Egypt and Myanmar.
If we prefer to continue with a constitutional democracy under the rule of law, we must increase the vigilance we need to maintain a free society. A starting point would be to reject selfish pushes to amend the constitution for selfish, immoral reasons. If we allow ourselves to be used as bait for political proxy wars, the ensuing institutional damage will take years to repair.
The will to reject autocracy currently prevails in Kenya. Individuals, social governance groups, including in civil society, business people, social institutions and trade union movements must refuse to be drawn to political wars. If we can coalesce around the idea that we want the constitution respected and implemented, not mutilated and wantonly amended, we can save Kenya from the ravages of a corrupt, politically immoral system. (
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