“The beauty of a society is not just in the laws upon which the society revolves, but how the society regards, upholds and obeys the laws which set boundaries for a beautiful and a harmonious society.” – Ernest Agyemong Yeboah
Our Katiba is officially a pre-teen! Today marks a decade of existence of our greatly hallowed Constitution. On 27th August 2010, Kenya reached its long-awaited constitutional Canaan when the ‘second’ Republic of Kenya was birthed through the heralding of this immensely acclaimed law. The labour leading up to this birth was harrowing, spanning over twenty years before it was finally midwifed. Kenyans were ready for change. Kenya was ripe for reforms. Perfect timing! After 68 years of colonialism and another 50 years of post-colonialism, the Kenyan people were set to redesign the status quo. With hopeful eyes, expectant spirits and eager hearts, Kenyans signed into law a new social contract. Transformative! Revolutionary! Progressive! Groundbreaking, are some of the big words that describe this law; rightfully ranked among the top constitutions in the world.
The excitement following this new constitutional dispensation was evident from the endless praises sung about its grandeur. The judiciary has from time to time hummed to the tunes of these songs. For instance, only months after its promulgation, the High Court in Federation of Women Lawyers Kenya (FIDA-K) & 5 others v Attorney General & Another (2011) poetically captured the journey of the making of the Constitution and the challenge that lied ahead, stating:
“Only last year and in our early maritime history we constructed a great ship and called it our new Constitution. In its structure we put in the finest timbers that could be found. We constructed it according to the best plans, needs, comfort and architectural brains available. We tried to address various and vast needs of our society as much as possible. We sent it to the people who ratified it. It was crowned with tremendous success in a referendum conducted on 4th August 2010. We achieved a wonderful and defining victory against the “REDS”. We vanquished them. The aspirations and hope of all Kenyans was borne on 27th August 2010. We achieved a rebirth of our Nation. We have come to revere it and even have an affection for it. We accomplished a long tedious, torturous and painful chapter in our history. We all had extraordinary dreams. It is a document meant to fight all kinds of injustices. It is the most sophisticated weapon in our maritime history. As Kenyans we got and achieved a clean bill of constitutional health. However, the honeymoon is over, it is time to do battle with it. This case is a battle between competing interests over the provisions of the Constitution.”
In the same manner, in the case of Speaker of The Senate & Another v Hon. Attorney General & Another & 3 Others, Advisory Opinion No. 2 of 2013, the Supreme Court applauded the Constitution stating as follows:
“Kenya’s Constitution of 2010 is a transformative charter. Unlike the conventional ‘liberal’ constitutions of earlier decades which essentially sought the control and legitimization of public power, the avowed goal of today’s Constitution is to institute social change and reform through values such as social justice, equality, devolution, human rights, rule of law, freedom and democracy.”
The excerpts represent the confidence Kenyans had in the power of the new constitutional dawn to overhaul the dark direction the country was taking. The hope of the Kenyan citizenry was that the new body of laws would be the antidote for the concoction of plights that afflicted its society. The country had just barely survived the post-election violence in 2007-2008 and was operating from a deficit. The smell of the blood shed was still fresh and the country was clutching on a straw. Wanjiku had to be saved and her wounds needed to be healed. This new law contained, what seemed at the time, to be the magic words Kenyans had so desired in a long while. Phrases such as representation of the marginalized, equalization fund, leadership and integrity, bill of rights, national values and principles and decentralization of power were like bait to a people in need of transformation. The overwhelming support of close to 70% of Kenyans the Constitution attracted on the referendum day (4th August, 2010), therefore did not come as a surprise. The former Chief Justice, Willy Mutunga aptly captured the Kenyan dream in voting in the new legal system stating:
“The making of the Constitution of Kenya 2010 is a story of ordinary citizens striving and succeeding to overthrow the existing social order and to define a new social, economic, cultural, and political order for themselves. There is no doubt that the Constitution is a radical document that looks to a future that is very different from our past, in its values and practices. It seeks to make a fundamental change from the 68 years of colonialism and 50 years of independence.”
The dream of the common mwananchi was deemed to have been actualized during the pompous Promulgation Day, a day like today ten years ago. “I, Mwai Kibaki, President and Commander in Chief of the Armed Forces of the Republic of Kenya, declare that the constitution set out in the schedule shall be the new constitution of Kenya, in effect from 27th August 2010.” These words by the then president ushered in the new Kenyan republic and at last ended the long wait for legal change. Kenyans thought they had finally left behind the demons of troubled elections, imperial presidency, constrained judiciary, competitive democracy, human rights violations, historical land injustices, corrupt leadership, gender blindness, inequality and discrimination. On that historic day, Kenya stepped into the long-coveted system promising free and fair elections, independent judiciary, decentralization of executive power, integrity in leadership, respect for the bill of rights, national values and principles, representation of the marginalized and so on. Out with the old and in with the new! The great ship set sail.
“Constitutional democracy, you see, is no romantic notion. It’s our defense against ourselves, the one foe who might defeat us.” – Bill Moyers
Today marks ten years since the great ship ventured into the troubled sea that was the Kenyan society. Granted, ten years is comparatively a long life for a constitution, and an African one at that. Most constitutions around the world barely survive childhood but Katiba Yetu, against ALL odds, is now a pre-teen. The year is 2020 and the lauded body of laws is ripe for a thorough health check. Has the Kenyan dream, even in the least, been actualized? Are we now relishing the fruits of the Canaan we arrived at ten years ago? Is the ship still afloat or has it been subdued by the troubled sea? This is the ideal moment to ponder these issues and to reflect on whether or not Wanjiku’s hopes and aspirations, or even a semblance of it, have been realized.
The wheels of the Constitution started turning immediately after the solemn declaration on Promulgation Day. Implementation begun because as stated by the former Chief Justice, “…constitution-making does not end with its promulgation…” (Speaker of the Senate & Another v Attorney General & 4 Others  eKLR). The Constitutional design is such that it is self-serving with regards to implementation as it constructed an elaborate structure of constitutional implementation. The legislations established in the Constitution to implement the laws have set timeframes for enactment in the fifth schedule and the sixth schedule was set up to ensure impeccable transition from the former to the new constitution. The skeletal characteristic of constitutional provisions necessitate the enactment of statutes to flesh them out. Consequently, it is unsurprising that the 10th Parliament, the one that was in place during the promulgation, enacted a whopping 173 Bills. These included those that related directly to constitutional implementation, either as substantive legislation or as amendments to existing legislation. The statutes yielded included the County Governments Act, Public Finance Management Act, Intergovernmental Relations Act, Transition to Devolved Government Act, Land Act, Land Registration Act, et al.
Kenyans have harvested plenty of crop since the promulgation of the Constitution as the implementation process was rolled out. The most notable is the decentralization of the government. Inclusive governance was made possible through devolution with the hope that it would bridge the regional economic gaps in the country. The effectiveness of devolution is habitually used as a yardstick to determine the performance of the Constitution. In addition, it widely recognizes the existence of marginalized and special groups of individuals in the society such children, the elderly, women, people with disabilities and marginalized communities. Other gains of the 2010 Constitution include the recognition of community land rights, impeccable system of accountability in governance through the principles of separation of power and checks and balances, the inclusion of Alternative Dispute Resolution and Traditional Dispute Resolution as legitimate mechanisms for conflict resolution, acknowledgment of Intellectual Property rights and Consumer Protection rights, protection of the rights of arrested persons, provisions of land and environment among others.
Despite these extensive provisions and the light of hope they lit in the Kenyan citizenry, the Kenya envisioned by the people on Promulgation Day remains a pipe dream. The slow progress in the translation of the transformative text into a transformed society has been occasioned by a number of bulwarks engrained in the fabric of the Kenyan society. The main barricades to execution include political blockages for the legislative uptake of proposals, lack of political goodwill, capacity constraints, circumvention of the constitutional purpose, self-interest, institutional interest and the political culture of making constitutional reforms a way of life instead of a last resort when all other routes have flopped. It is for these reasons that a decade into the existence of the Constitution finds the country chaotic, made worse by the existence of a global pandemic. A sovereign executive butchering the ideals of democracy, a frustrated judiciary, exorbitant foreign debt, frequent betrayal of Chapter six principles, commissions without commissioners, rise of poverty, unaddressed historical injustices, compromised judicial independence, distraught electoral body, breach of fundamental human rights among others.
While we celebrate the small wins that the Constitution has garnered in the ten years it been at our service, it is important that we are careful not to make it a celebration of good draftsmanship and forget the work it demands to actualize the dream behind it. The fact is that a constitution of a country is only as good as its impact on the lives of its citizens. In light of these standards, the 2010 Constitution still has a long way to go. The realization of these dreams requires us to bridge the gap between citizen expectations and citizen agency so that we are all accountable to each other and our leaders in ensuring that the spirit of the Constitution is not lost in translation. After all, it is our Constitutional duty to respect, uphold, and defend this law. It is my plea that we stop romanticizing this law and put in the hard work constitutionalism demands. We owe that as a tenth birthday gift to our great Constitution. Otherwise, we shall remain the country with the best constitution and nothing to show for it.
Happy Tenth Katiba!!