As the Kenya constitution turns ten, how is the adolescent doing?
Updated: Sep 23
A friend recently told me a reader went into a library for a copy of the constitution and was politely told the library does not stock comics. Cynical jokes aside, August 27 marks the tenth anniversary of the 2010 Constitution. How healthy is this pre-teen and what does it need to make it to adulthood? This is the first of a series of articles this month. National constitutions have very low life expectancies. Since the passing of the US constitution in 1798, most constitutions do not make it to their 18th birthday. This figure reduces to 10.2 years in Africa. Seven per cent of constitutions do not make it past their “terrible twos.”
This unsettling life-expectancy suggests that constitutions are fragile organisms and we must bring the “fierce urgency of now” thinking to how we protect ours for the next decade. Most of us who voted for the constitution knew it was not perfect. We saw a new Kenya in the vision of a people driven state (chapter 1, 2), transformative bill of rights (chapter 4), an end to corruption and impunity (chapter 6) and devolved governance (chapter 11). We also saw its limitations. The bloated wage bill, insufficient county funding, the lack of reproductive and health safety for women and the no-divorce clause for the president, governors and their deputies among others. A constitution basically sets national values, basic rules and limits the power of government. It is a legal and ethical compass for both state and society. Ours was also a radical declaration in 2010.
Placing the model of Nairobi based imperial presidency with courts, parliamentary assemblies and citizens in shackles on notice, it sought to fundamentally change 122 years of colonialism and post-colonialism. Gently put, our 10-year old Katiba Yetu has had a troubled childhood. 2020 finds the national executive highly indebted abroad and intrinsically enmeshed with cartels at home. Over-extended in the financial independence and recruitment processes of the judiciary, legislative and independent offices, it also suffers from mission creep. After a year of recruitment delays, the Auditor General is now franticly chasing public audit backlogs. Three years after losing confidence of all political parties, the electoral commission is still in disarray. Several months on, the national human rights commission still has no commissioners. The quality and impact of the 48 laws listed in Schedule 5 of the Constitution needs further examination. However, two successive parliaments have consistently stabbed the heart of Chapter 6 by passing weak and ineffectual anti-corruption laws and placing MPs terms and benefits above those who elected them. Powerful collaboration between investigators, prosecutors and judges to sentence or block powerful police officers or governors from returning to the scene of crime have brought us all closer to a just and rule of law society. Although unpopular with some, the judicial activism of judges Mumbi Ngugi, Isaac Lenaola, Vincent Odunga and others will frame the judiciary’s contribution to this decade of constitutionalism. Once central to the demand for a new constitution, most non-governmental organisations have waned. Starved by dwindling foreign development funding and constrained by a 30-year-old one-party law, the NGO Coordination Act, NGOs are being replaced by the more vibrant and less structured social justice activism of individuals and community-based organisations. It is this that recently saw the Uhuru-Owino community and Phyllis Omido successfully sue the State for Sh1.3 billion in damages to lead poisoning victims. It is the Lang’ata Road Primary school children and the Shule Yangu Alliance that catalysed the State in 2015 to protect and award land-titles to 11,000 schools by 2020. It is the qinvestigative journalism of John Allan Namu, Asha Mwilu, Gordon Osen and others that have nurtured our right to the truth. Mauled by greedy self-interest, public trust levels in State institutions dip. Some even argue we are in a revolutionary moment. As constitutional reform conversations appear pre-occupied with unemployable politicians and governors in future, we must all honestly appraise what we have done to stifle or breathe life into the constitution and reset our own buttons. Four billion people suffer autocratic states across 94 countries today. There, like here, the price of freedom is eternal vigilance. Under Article 3.1, we all carry a civic responsibility to challenge impunity, expose human rights violations and use our freedom to enable others to do the same. Upholding and defending the Constitution will be the best birthday gift we can give each other at the end of the month. Happy tenth birthday Katiba! This article was also published in the Saturday Standard, 8 August 2020