Thursday marked the tenth anniversary of the Constitution. In the last of four articles exploring its’ significance today, this one reflects the views of everyday citizens and the challenges ahead. Despite COVID-19, civic organisations, academic institutions, media houses, the Judiciary and the United Nations held no less than fifteen virtual conversations this week.
President Kenyatta reiterated his Madaraka Day call for constitutional reform and referred to the constitution as a “cease-fire” document. Hon Raila Odinga called for an additional third tier of regional governments and assemblies. Notably absent were similar public conversations of parliamentarians and civil servants to audit their progress and rededicate their offices.
1,500 Kenyans also got a chance to share their assessment of the country’s constitutional progress. Commissioned by the Kenya National Commission on Human Rights and eight human rights organisations, the “Distressed Yet Defiant” Opinion Poll has several insights. Public awareness is relatively high. 1 in 2 Kenyans are now familiar with the constitution and particularly, the Bill of Rights. However only 23 per cent of the population are satisfied with the rate of progress.
While 75 per cent associate devolution with improved development services, 87 per cent feel that devolution has also accelerated corruption and impunity. It is not coincidental that the arrests of Mara University Vice-Chancellor Mary Walingo and four others, Migori County Governor Okoth Obado and family and the alleged role of the Health PS Susan Mochache in the KEMSA scandal wiped Katiba Day celebrations from the news headlines.
It has been 21 years since the UN Special Rapporteur Philip Alston released his report on arbitrary and extra-judicial executions and police brutality. Shockingly, despite this length of time, twice as many Kenyans fear police brutality more than being impoverished. 68% of Kenyans say that police officers are the greatest perpetrators of human rights violations. Sadly, only one in three have the confidence to report to the police. Our law enforcement agencies must rededicate themselves to the core values that frame their services.
The Infotrak and Research Consulting poll could also guide the political class during this building bridges and constitutional reform season. 60% of Kenyans want stricter enforcement, not amendment. Those that do want amendment want to reduce the costs of representation, taxation and corruption.
Despite the dissatisfaction with constitutional implementation, the constitution has been transformative in several regards. Without the specialization and resourcing of the investigative, prosecutorial and judicial arms of the state we would not have seen the anti-corruption arrests this week. A Police Officer and suspect in the killing of 13-year-old Yassin Moyo would not be facing justice without the Independent Policing Oversight Authority.
Young mothers Margaret Oliele and Maimuna Awuor wouldn’t have been compensated Kshs 2 million for their illegal post-delivery detention. Without devolution, millions of Kenyans would not have access to their elected representatives, tarmac and health dispensaries. The constitution has been transformative, but we still have far to go as a country.
Those pressing for constitutional changes must ensure that they insulate the current constitution from mutilation for an electoral 2022 moment. The constitution is much more than a “cease-fire” document between political parties.
It is important to shift the culture of elections from a zero-sum game and clarify the quasi parliamentary-presidential system we have. It is also important to reduce the cost of governance and to ensure that no gender dominates our public offices. That elections remains a zero-sum game is despite Article 81. It is not the constitution that disrupted the Electoral Commission or threatened judicial independence in 2017 but the culture of politics.
Creating new positions for the twenty or so second Governors in regional governments does not address this. We have learned painfully, that increasing positions and salaries does not satiate greed, it only expands appetite. We must instead address the desire of the national executive to concentrate power.
Every year, since the constitution was passed, we have seen the principle of distributive power threatened in conflicts between county and the national governments, the judiciary, executive and legislative and independent offices charged with the management of public finance, elections, salaries and human rights.
If 67 Senators cannot agree on County Revenue formula after ten attempts, how can 47.5 million generate consensus without polarizing conflicts? We are not in a constitutional moment and we must not risk one of the worlds’ most progressive bill of rights.
This article is one of four celebratory articles that reviews the implementation of the constitution. It was also published in the Saturday Standard 29 August 2020.