Reflecting on the trials of the 2010 consitution of Kenya on its tenth anniversary

By Kibe Mungai

…President Kibaki signed into law a constitution that relegates detention without trial and political exile to the dustbin of our ignominious history under presidential authoritarian rule. The President will no longer be that feared monster whose edicts Kenyans loathed to listen to at one o’clock sacking people left right and centre and promoting incompetent cronies to the citadels of state power. There is no doubt that the checks and balances that we always wanted in government are enshrined in this constitution ushering in the Second Republic. Kenya is now home to a fundamental law of the land where individual as well as people’s rights are respected and promoted by the Bill of Rights.
—Peter Anyang’ Nyong’o (2011)

On August 4, 2010, almost 70 percent of voters elected to ratify the then draft Constitution, which was subsequently promulgated twenty days later on August 27. This month, Kenyans will be marking – with celebration or moaning – the tenth anniversary of the adoption and promulgation of the 2010 Constitution whose enactment effectively ushered Kenya’s Second Republic as a constitutional democracy in which sovereign power reposes in the people.

Reflecting on the record of the state and its organs under the constitutional order established 10 years ago, it is easy to find many things to applaud as it is to feel disappointed with and underwhelmed by the gains the reborn nation has achieved viewed against the promise and potential immanent in the 2010 Constitution. To be sure, the fact that Kenya’s major power players and arch-rivals since 2007 have ganged up to amend the 2010 Constitution is a pointer to the ambivalent and mixed feelings that the 2010 Constitution evokes as we mark its tenth anniversary.

In celebrating Kenya’s new Constitution, President Mwai Kibaki observed in the Kenya Affairs issue of May/June 2011 as follows:
“From 1964 we began to amend the independent Constitution without much consultation with the people of Kenya. It may have been expedient to do so. However, as a result, eventually the clamour for a people’s driven constitution emerged. Apart from recording history, I make this observation to warn us, yet again, that whenever we want to change our new constitution, we must do so with utmost caution. Obviously any constitution must be change occasionally to accommodate changing times.”
Considering now that the Building Bridges Initiative is largely a political project of President Uhuru Kenyatta and ODM leader Raila Odinga, it seems to me that, like with the independence Constitution, there is cause for apprehension that the 2010 Constitution might be changed to whatever ends based on elite consensus and expediency and with scanty or genuine consultation with the people and even Parliament let alone legitimate reasons for such amendments.

Lest we forget, in 1963 Kenya became an independent country under a constitution that provided for a parliamentary system of government, a semi-federal state, independent judiciary and an elaborate bill of rights that protected the rights of individuals and minorities. However, within five years the majimbo system had been scrapped and the executive strengthened at the expense of parliament and the judiciary. The five years’ term of the first government was also extended to seven years through a constitutional amendment and the constitution was ruthlessly deployed by the Jomo Kenyatta and Tom Mboya to push Oginga Odinga and his allies out of power. In fact when the second general election was held in December 1969 the opposition Kenya People’s Union (KPU) had been prescribed, its leaders detained and Kenya had become a de facto one party state.

Compared to the fate of the independence constitution, the 2010 Constitution embodies progress and we need to celebrate that under the new constitutional order no one person or political formation calls all the shots and no one is an absolute loser in the game of politics. The 2010 Constitution has not only expanded democratic space but also constrained the authoritarian instincts of Jubilee power men that its Vice-Chairman David Murathe barely conceals. Even the deep animus between President Kenyatta and Chief Justice David Maraga is a testament that the 2010 Constitution has somehow established a judiciary capable of preventing egregious or unadulterated types of governmental lawlessness and disregard for due processes of law. Therefore, despite the gloom of Covid-19 and the uncertainly and suspicions over the BBI project, there are five reasons we should celebrate the 2010 Constitution on its tenth anniversary.

HITS AND ACHIEVEMENTS

First, the Constitution declares that the Republic of Kenya shall be a multi-party democratic state and the living proof of this in Kenya is the number of counties run by opposition parties since 2013. Compared to the controversial 2007 general election in which the country was sharply divided into two antagonistic camps, in the two general elections under the 2010 Constitution new political parties and political influencers have emerged thereby helping to curb fall-outs over the presidential election results.

Remarkably also, the clout and influence of opposition chief Raila Odinga is tremendous compared to Uganda and Tanzania’s where leaders are subject to permanent state harassment and their lives threatened for the flimsiest of transgressions against their elected despots. Moreover, despite occasional attacks on civil society and the media, political pluralism has helped to ensure that Kenya remains an open society in which public officials strive to respond to the concerns and grievances of the citizens.

Secondly the 2010 Constitution establishes a two-tier system of government at the national and county levels that are distinct and inter-dependent in order to, inter-alia, further national unity by recognizing diversity, promote self-governance and empower local communities to manage their affairs, enable access to public services and ensure equitable sharing of national and local resources. Throughout the country, various public investments and undertakings bear testimony that it was a good idea to devolve some state power and resources to local communities. The fact that virtually all the counties depend on the National Treasury transfers for their economic survival means that devolution has helped to deepen national unity and stability.

Discounting various shortcomings, the devolved system of government has guaranteed Kenyans that if ever a buffoon or outright thief were elected as president of Kenya this country will not grind to a halt. This is because the central idea of devolution is to ensure that even when the national government is a big mess, there are 47 county governments to take care of a broad spectrum of the peoples’ needs at the grassroots.

The Bill of Rights is the third reason for celebrating the 2010 Constitution. Today, the Bill of Rights is not a toothless bulldog and so quite frequently governmental actions and decisions have been halted or reversed by courts or political action at the instance of ordinary people and associations. In real terms, Kenya belongs to Kenyans in ways that Uganda, Tanzania and Ethiopia cannot be for their respective citizenry. The constant lament that big projects in Kenya are susceptible to delay and higher cost on account of protracted disputes over land compensation has oftenly masked the fact that individual Kenyans and communities truly own their territory and so governmental power is limited within our shores. There is nothing to envy Ethiopia or Tanzania because, like China, they can displace populations within a month to allow the state to accomplish its mission.

Fourthly, whereas it could have done better, the performance of the Judiciary after the enactment of the 2010 Constitution is one of the brightest outcomes of the new constitutional order. In many respects, under the 2010 Constitution the Judiciary is a truly independent arm of government with sufficient space for judges to influence or shepherd the country’s destiny as an effective state and working democracy. Indeed, both the 2013 and 2017 general elections were held under a legal order radically shaped by court decisions which has helped to instill respect for and submission to rule of law in unique ways by the standards of many young democracies.

Finally, the revolutionary idea in Article 1 of the Constitution that all sovereign power belongs to the people of Kenya is not a hollow platitude as attested to by the general election results in 2013 and 2017. Perhaps out of sheer laziness. political pundits and commentators like to dismiss elections as mere ethnic census but upon critical scrutiny nothing could be further from the truth. Kenyan voters are more sophisticated and smarter than analysts credit them, and the Jubilee Party may have won the two general elections because it acknowledges this fact and formulated appropriate narratives to procure support.

As evidence, in the 2017 General Election, two independent candidates were elected as governors of Laikipia and Isiolo whilst in Machakos, Nairobi, Kwale, Nyamira and Kitui the voters went against the grain in the presidential contest to elect candidates they perceived as more capable for the job. In Kakamega, Kisii, Bungoma, Isiolo and Laikipia Counties, voters elected candidates on their own merit and the tyranny of presidential choice was not decisive in those and many other counties. In short, the people of Kenya are truly sovereign and the destiny of this country lies in their hands when all is said and done.

THE FLAWS IN THE 2010 CONSTITUTION

As adverted to above, a gloomy atmosphere has descended upon our country as we mark the tenth anniversary of adopting the 2010 Constitution. There are many reasons why the people’s constitution is bound to miss its highnoon. I will highlight five of the major shortcomings and challenges that have impeded or plagued the Second Republic. However before embarking on this limb of my analysis, it is prudent to briefly comment on three technical issues or systemic flaws of the Constitution that deserve to be addressed sooner rather than later if ever the 2010 Constitution is to last for its eleventh anniversary.

For the most part, the Jubilee administration and the Eleventh and Twelve Parliaments deserve commendation for enacting the laws required by the Constitution to govern particular matters as specified in the Fourth Schedule. However, it has proven a major challenge to enact a legislation to provide for the one thirds gender rule to implement the principle set out in Articles 27(8) and 81 that no more than two thirds of the members of elective or appointive bodies shall be of the same gender.

Since democracy seeks and thrives with inclusion of all citizens, it is a good thing to aspire for public bodies in which all ethnic, religious, genders and other groups of influence are represented. But representative democracy begins to be hollowed out the moment membership of electoral bodies is opened up to people – whether they be disabled, youth, women or acolytes of feudal lords – who do not owe their mandate to the people. I am particularly gratified that the Twelve Parliament has hitherto deployed all kinds of maneuvers to defeat this unwise and tyrannical gender principle. In fact, during the ongoing purge of the allies of Deputy President Dr. William Ruto, it has become apparent that when push comes to shove. nominated MPs are nothing but lackeys and slaves of party masters.

The least that the BBI project should do is to get rid of the two thirds gender principle secured through patronage of nomination by party chiefs and strive to compel parties to ensure direct election consistent with this principle. By the same token, Article 26(5) – (7) that ultimately required the Chief Justice to advise the President to dissolve Parliament in the event that it fails to enact any legislation required by the Fifth Schedule should be deleted for being nonsensical: the President has no power to dissolve for whatever reason Parliament under the 2010 constitutional order. Therefore these provisions are based on gross misconception of constitutional law.

The second major flaw of the 2010 Constitution is found in Article 140 which, inter-alia, provides that a presidential election petition be filed within seven days of the declaration of the results of the presidential election and for the Supreme Court to hear and determine such petition within fourteen days after its filing. These timelines are simply unrealistic because in practise they mean three things. First, it is not possible to file a well-grounded presidential election petition as legal scholars will attest to about both of Raila Odinga’s Petitions in 2013 and 2017.

Secondly, the unrealistic timelines mean the Supreme Court must use summary procedure to determine complex matters of evidence because it is simply not possible to have an elections trial which is even guaranteed with regard to the elections of a member of county assembly. Under the summary procedure, it is simply not possible for the loser to feel that the court decision was legitimate. Notably, after his election was nullified by the Supreme Court in August, 2017 Uhuru Kenyatta repeatedly wondered why the votes could not be recounted if the only problem was with the transmission of the results. In truth because of this irrational timelines, recount of votes is not a viable remedy in Kenya’s presidential election petition.

Thirdly, the fourteen-day period translates into procedurally unfair election petition rules whose effect is to defeat substantive justice particularly because evidence that parties come across after the seven day period cannot be easily accommodated. As a result, the Supreme Court is condemned to displease and outrage half of the citizenry every five years. In the end this is neither good for the authority of the courts and for the sanctity of constitutional democracy in Kenya.

The third flaw of the 2010 Constitution lies in Articles 91 and 92 that relate to political parties. Under Article 91 every political party shall, inter-alia, have a democratically elected governing body and ensure fair and free elections within the party. These cardinal principals have not been complied with in Kenya and specifically President Kenyatta has twice won the presidency on sponsorship of political parties that have not complied with Article 91. It seems to me that the President should be grateful that Okiya Omtatah has never challenged the constitutionality of his government on this score.

Of greater interest in this regard is the fact that non-compliance with Articles 91 and 92 means that Kenya is effectively governed by private feudal societies controlled by one or two families and their cronies. Ultimately this feudal arrangement subverts democracy completely because it is the foundation of civilian coups in Kenya that made it possible for a president to, mid-stream, purge those he won the election with and invite the opposition to rule with him. This happened in 1964–1966, in 2005–2007 and it is a work-in-progress since the Handshake of March, 2018.

SHORTCOMINGS AND CHALLENGES

In their book Politics: An introduction to Democratic Government, Munroe Eagles and Larry Johnston observe: “Democracy, from the perspective of those in power, may be a means of securing support for the exercise of power. Those who enjoy the exercise of power and authority may wish for just enough democracy to grant them legitimacy, but not enough to put serious constraints on their exercise of authority and power… The whole point of the liberal revolution against medieval authority was to secure individuals from the arbitrary exercise of power, and the kind of power justified by traditional or charismatic grounds could offer no such guarantee… there are two fundamental ways to be secure from arbitrary power. One is to constrain the use of power so that it cannot harm us and the second is to exercise that power ourselves. The latter is the end of democracy, the former is the aim of justice.”

In many ways the Constitution of Kenya, 2010 creates a feasible basis to secure individuals and society from the arbitrary exercise of power but in practice the great society envisaged in the Constitution remains an aspiration. There are four major shortcomings and challenges facing Kenya’s second Republic.

The Imperfect Transition from the Old Constitutional Order

Writing in the aftermath of the adoption of the 2010 Constitution, Prime Minister Raila Odinga stated that the new Constitution marked a historic turn from tyranny to democracy in which the tyranny of the state would end and the citizens become the centre of the moral universe. As words go, it is hard to imagine a more euphoric celebration of the moment. Yet Raila was quick to add that in order for this democratic paradise to become a reality,Kenya would need the right shepherd to oversee the transition from tyranny to democracy. In his words:

“New Leadership in Kenya means organizing politics on policies, particularly on sustainable development and rights, rather than on what divides Kenya. We have a new slogan in the air; Katiba Mpya, Uongozi Mpya (new constitution, new leadership). Going forward, I wish to maintain the unity that delivered this constitution, and to join hands with all reform forces.”

In retrospect, history refused to be kind to Raila Odinga because against the greatest of odds Uhuru Kenyatta and William Ruto won the 2013 presidential election and repeated the feat in 2017. It seems history has the uncanny habit of repeating itself. In the struggle for Uhuru the Mau Mau, political radicals broke the spine of British colonialism but in the end the sovereign trophy was handed over to a coalition of homeguards, collaborators and conservative politicians. Similarly, in 2013 Daniel arap Moi – the aging tyrant of Kenya – could not be prouder of the political outcome of the constitutional-making process that had given him endless nightmares: his chosen heir, Uhuru Kenyatta, got the trophy and the mandate to implement the new Constitutional order. Uhuru was a late convert to the constitutional review movement and his deputy William Ruto opposed the two proposed constitutions with the natural consequence that the 1969 authoritarian version of the independence Constitution would have remained in force if the No side he championed had won.
In my view the less-than-idyllic constitutional transition in 2013 is responsible for the tension that continues to plague the new constitutional order as dramatically epitomized by what has become Raila’s elusive quest for electoral justice that journalist John Onyando has so brilliantly documented in his book Kenya: The failed Quest for Electoral Justice. Now that Raila is engaged in the making of a political coalition with Uhuru it remains to be seen how the Constitution would be impacted.

Democracy Remains Fragile in Kenya’s Second Republic

During his stint – alongside Dr. Gibson Kamau Kuria – as the intellectual godfathers of the constitutional review process in the 1990s, Prof Kivutha Kibwana often said that democracy is a good thing because it describes a system of government under which government is established through periodic elections and the people can directly or indirectly decide or determine important questions or issues of governance. This fact seems to be such a truism that it is easy to forget that no governing class in history, whether elected or self-anointed, has ever considered its tenure in office as temporary or periodical which is the crux of democracy. Every ruling class or governing party sooner or later imagines itself as an aristocracy whose foolish subjects should be privileged to be governed by them. As the philosopher Carlyle wrote:-

“It is the everlasting privilege of the foolish to be governed by the wise… In Rome and Athens as elsewhere, if we look practically, we shall find that it was not by loud voting and debating of many, but by wise insight and ordering of a few that the work was done, so is it ever, so will it ever be.”
As Kenyans mark the tenth Anniversary of the people’s Constitution, it helps to reflect that so long as democracy does not keep anyone in power permanently it will always be subverted, compromised and corrupted by people who would rather be an aristocracy – those who regard themselves by merit or birth as the best citizens of a given State. Therefore as the BBI Project enters its final phase it should help to remind ourselves of two major hurdles and perils of democracy in present-day Kenya.

The first peril is conceptual. Article 4(2) of the Constitution provides that Kenya shall be a multi-party democratic state whilst Article 6(2) provides that governments at the national and county levels are distinct and inter-dependent. Without a doubt the National Government in Kenya has been established in a way that respects and practices multi-party democracy but experience since April, 2013 shows that in many counties single party rule has made a come-back. For democracy to thrive in Kenya it seems critical that the governing elite should project a national ethos which apparently has been compromised by the provincial mindset that characterizes devolution in Kenya. Accordingly, in future, governors hailing from single-party counties might ascend to national office with a monolithic political culture which could be tragic to democracy in Kenya. Further, devolution has turned into a poisoned chalice because it has seemingly devolved power and money and left democracy in Nairobi!

Secondly, democracy is imperiled where the voter is out-rightly ignorant or subscribes to beliefs and practices inconsistent with democratic values and principles. Democracy requires tolerance and a spirit of give and take in which the majority rules whilst the minority who rights are secured by law and accepts as legitimate the decision of the majority. Unfortunately in Kenya, too often minorities demand the privilege of the majority and even rig the population census to turn themselves into a false majority. Democracy is facing a serious crisis since the Supreme Court nullified Uhuru’s election victory in August, 2017 followed by the swearing in of Raila as the people’s president and the subsequent Handshake of March, 2018. It appears that soon after the election all members of the Kenya political class want to be in government thereby making a mockery of elections as there is no one willing to provide political checks and balances necessary for democratic accountability of power.

The Spectre of the Felonious State in Kenya

In their book The Criminalization of the State in Africa Jean-Francois Bayart, Stephen Ellis and Beatrice Hibou discuss the systematic capture of state power by governing elites and the increasing criminalization of the political societies and the economies of sub-Saharan Africa following the end of communism in 1989 – 1991. In their words:

“Criminal operators, who can on occasion be formidably well organized at a national level and in some cases exercise clear influence at the heart of the state, or even use the state as their main power-base, as in Italy, Colombia, Japan, China, India and Russia, are capable of co-operation with one another and even on occasion of launching true joint ventures. At the same time, criminal activity often serves as a vehicle for both cultural representations and goods of foreign origin, and in this respect plays a full role in the process of globalization. It is interesting to note in passing that criminals are very often portrayed as heroes in feature films and television programme… The fact is that the global context in which major criminal organizations operate gives them a certain functional coherence, and even a political and cultural one, which may also prove to be the case in sub-Saharan Africa in conformity with the trend towards what might be called ‘glocalization’.”

Three recent events illustrate that the spectre of the emergence of a felonious state in Kenya is quite real. The first example occurred early this year when former Cabinet Secretary Rashid Echesa and his collaborators were arrested by the police trying to sign a fraudulent arms-supply deal at the office of Deputy President William Ruto in the aftermath of which the police officer responsible for security at the office of Kenya’s second-in-command was murdered in mysterious circumstances. Whatever the truth about this saga, the fact that such brazen criminal scheme was being perpetrated in the Deputy President’s office is a pointer to the increasing criminalization of the Kenyan state.

The second incident was narrated by Journalist Kamau Ngotho in his Memories of the Beat Sunday Nation column of July 26, 2020 article titled Kenya @ 100. The hits, misses and outrights blunders about the proliferation of fake degrees by politicians to meet the constitutional educational requirements for various offices. In Ngotho’s captivating narration:

“Today we have no less than four sitting county Governors with “degree” certificates suspected to have been printed in River Road. I have closely associated with one of them and can testify he can’t complete three consecutive sentences in English. I guess they printed his degree “certificate” in English but gave him tutorials in vernacular. In conversation, the said Governor keeps interrupting by saying: “Incredible! Incredible!” I came to understand he means to say “amazing”. He reminds one of the Ugandan President Idi Amin who, when in a conversation and you said fantastic, he would reply: “Very coco-colastic!” When the IEBC started nosing around about the said Governor’s academic papers, his friend, who is a big shot with itching ambition to be president of Kenya in 2022, advised him to visit Anniversary Towers at night with a sack-load of cash. The matter of his ‘papers’ died a natural death.”

The third incident is the “juiciest” of all. The Health Committee of the Senate has been probing the Sh63 billion Managed Equipment Service (MES) progamme in which the Ministry of Health signed leasing deals with international firms at State House in May 2015 for the lease of medical equipment for county governments. The MES contract was initially valued at Sh38 billion but was later varied to Sh63 billion. Whereas each of the 47 Counties has been paying Sh200 million per year under this deal, the leased equipment have been lying idle in majority of the counties due to lack of qualified personnel to operate them. Besides the curious denial by former Attorney General Prof. Githu Muigai that he did not sanction the deal and the subsequent rebuttal by CS James Macharia to the contrary, it was the testimony of former Health CS Cleopa Mailu that raised more eye brows. The Sunday Nation reported Dr. Mailu testifying as follows about the secrecy of the contract to the extent that he was denied access to crucial documents despite being the head of the Ministry that signed the deal:
“I remember asking for the documents. I also remember Parliament asking for the same documents but I was told they are top secret, and I wondered what is it that is a secret to me as a Cabinet secretary. I couldn’t understand what was in the document that could not be availed to the minister and a committee of Parliament”.

Dr. Mailu painfully narrated how he held meetings with the various contractors of the MES without even understanding the contents of the programme itself.
“Despite not understanding details of the contract, I tried my best to ensure that project succeeds,… The tenure in the ministry was very challenging especially in the implementation of this project in terms of understanding and traction of the project by the ministry.”
The contradictory statements from the three senior government officials left the committee members puzzled with senators asking how a CS cannot access documents pertaining to a project implemented in a ministry under his jurisdiction.

The Gloomy Future of the Presidential System of Government in Kenya
Despite Prof. Angong’ Nyong’o’s glorious welcome of the 2010 Constitution captured in the headquote of this commentary, in 2019 he published the book titled Presidential or Parliamentary Democracy in Kenya: Choices to be made which basically makes a case for adoption of the parliamentary system through the BBI constitutional review project. In many respects the mess that Jubilee has made of the presidential system during the last seven years makes the case easier for Prof. Nyong’o, but the truth is a little bit more complex.

The political mandate to govern Kenya is shared between Parliament and the Presidency but the performance and efficacy of government ultimately depends on the competence and capacity of the President and his Deputy to do their jobs. As a case in point, in relation to appointment of the Cabinet and Senior state officials, the National Assembly approves the nomination but the quality of such appointment depends on the President who is vested with the powers to nominate and appoint.

Similarly, Parliament has considerable powers to allocate resources but, in the main, the executive proposes the priorities and actually spends the money subject to symbolic tinkering and modification of the budget by Parliament. To put it boldly, when all is said and done, the fortunes of this country – or any modern state – depends on the calibre and competence of the executive arm of government rather than the goodwill and capacity of its legislators.

Some things are not easy to say but patriotism demands that they should be said anyway. Two things in particular must be said about the deficiency of the Jubilee Presidency. First, the caliber of Jubilee’s cabinet is incredibly low and historically it is only comparable to President Moi’s 1988 Cabinet following the discredited mlolongo elections.

Secondly, among the power brokers and courtiers reputed to wield power and influence decision making there is hardly any with a credible record for genuine concern for public interest and national good. In truth, the institutions of the presidency and cabinet in Kenya have fallen into the hands of the merchants, tenderpreneurs, brokers and free felons under the economic patronage of China and its state corporations. In many ways the current Kenyan presidency resembles the Republican Presidency under Richard Nixon of which the authors of the book Watergate said as follows: “
Aside from Henry Kissinger, Nixon’s flamboyant National Security Adviser, there was nobody within close range of the President who could be remotely classed as an intellectual and, perhaps more important, even those with experience of elective office were at a premium. All the charts, polls, and computer printouts of Nixon’s men could not supplement this basic deficiency. Lacking any experience in the exercise of political power or even the intellectual’s capacity to speculate about it, their limited understanding of politics derived from the salesmanship of the campaign trails… At a time of enormous complexity in national and international affairs, the President of the United States fashioned (or allowed to be created) an elite of mean-minded, middle-brow conformists: men who were simply not up to the job of government. There was bound to be trouble”.
Similarly, whether the BBI project will discard the presidential system or not, the evidence suggests more the failure of the Jubilee presidency than fundamental flaw of the system in Kenya.

The political travails of Kirinyaga Governor Anne Mumbi capture the vacuity of the successive cabinets of Jubilee. In 2013 Anne Waiguru – as she was then known – was the poster-girl of the new generation of the progressive cabinet of Jubilee. It was Ms. Waiguru who was projected as the epitome of the new-look leadership that would transform the operations of the Kenya State. Then in the middle of Jubilee’s first term the National Youth Service (NYS) scandal erupted in the Ministry of Devolution in which public money was reportedly carted away in sacks by a criminal band led by a mysterious hair-dresser.

The crudity of this heist exceeded all previous scandal even in Henry Kosgey-led ministries during the Nyayo era. Since the police and the anti-corruption commission said that Waiguru had no role in the NYS scandal, we should probably not wonder that three years later Deputy President William Ruto nominated a class eight graduate in the name of Rashid Echesa for appointment to the cabinet with the concurrence of both the National Assembly and President Kenyatta.

As we await to see the nature and extent of constitutional changes the BBI2 Report will contain, it is clear that the 2010 Constitution may not mark its eleventh anniversary in a fundamental sense. The political class cannot countenance how elections victory does not empower it to call all the shots in Kenya. In fact, this mindset is most probably why President Kenyatta has chosen to disobey court orders to resist appointment of some judges he does not personally approve. Ironically during the Nyayo era President Moi would do everything under the sun to prevent courts from making decisions he did not like but whenever the courts decided – against all odds – to rule against him the old tyrant would reluctantly abide by the court decision.

Perhaps these historical twists and turns are what makes life in Kenya quite interesting.