Kenya’s 2010 Constitution marked its 15th birthday this week, complete with a presidential proclamation that recognised the 27th of August as Katiba Day. It is easy to pour scorn on the declaration, especially as it does not deliver a holiday, but focusing on the Constitution for one special day is critical for reminding us what the Katiba means.
In 2010, when the Constitution was promulgated, there was hope in the air. By 2013 when we held the first elections under the new law and established the devolved system, Kenyans had great expectations that their lives would finally have meaning. Fifteen years later, while there have been significant progressive developments, there have been too many misses on the journey of Kenya’s rebirth.
The rain started to beat the Constitution when Jubilee came to power in 2013. It abolished the office of Minister of Justice and Constitutional Affairs, an office that had been ably held by the late Mutula Kilonzo. Without a voice in the Executive, relegated instead to a colourless docket in the Attorney General’s office, constitutional implementation went to the back burner.
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In 2015, Parliament refused to extend to extend the term of the other “owner” of constitutional implementation, the Commission for Implementation of the Constitution, hammering another nail in the implementation coffin. Parliament’s Constitutional Implementation Oversight Committee became lackluster, its mandate unclear and its leadership without the gravitas of former chairs like Abdikadir Mohammed or Ababu Namwamba.
Since then, the task of keeping the Constitution in the front banner has been left to civil society. One must commend institutions like TISA, the Institute of Social Accountability, Katiba Institute and the Law Society for keeping the Constitution’s fire burning. It was therefore heartening to see the Executive recognise the importance of the Constitution in this unexpected proclamation. To give the day more meaning, the Executive should provide a detailed account of the implementation achievements and failures and honour those that have been faithful implementers. To be fair, there have been progressive constitutional developments since 2010.
For those of us who have lived in the three administrations of the two Kenyattas, Moi and Kibaki, we know that the greatest positive change has been in the expanded civic freedoms that make us a bastion of freedom in an increasingly repressive neighbourhood. We must collectively say “Never Again” to anyone who would desire to take us back to the dark days of fear and terror in the hands of the state.
The other progressive constitutional dividend has been the checks on the Executive and Parliament afforded by a stronger and independent Judiciary. Finally, devolution, with all its warts, has delivered equity and significant developments across the country. This baby must be kept alive, made stronger, but more accountable.
The misses are however painful and as we celebrate Katiba Day this year, we must seek to travel a different trajectory. The most glaring failure has been the capture by the Executive of Parliament and many of the independent offices established in Chapter 15, and their consequent failure to act as a check on executive power.
Even the media, despite being granted substantial freedoms by the Constitution has been a disappointment, focused more on sensationalising than serious investigating. With a few exceptions, media has failed to catalyse informed public discourse on key national issues. But greater than these failures has been the inability of the constitutional implementation process to issue a prosperity dividend to the people. Article 43 that promised health, water, sanitation, freedom from hunger, education, social security and housing to people as part of their rights, remains a hollow promise.
Granted, programmes like the Affordable Housing seeks to respond to parts of this obligation, but it is still too little and for many Kenyans, too late. Finally, is it time to amend the Constitution? Maybe and maybe not. But knowing what I know of our leadership, even if the entry point for amendment is progressive ideas, by the time we start inputting the actual changes, what will be snuck in and neuter the Constitution, not strengthen it.
My take; as we head to the Constitution’s 20th birthday, let us spend our energies implementing what we already have before we start tinkering into an unknown.
The writer is an advocate of the High Court
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By Kamotho Waiganjo