By Mugambi Laibuta
It has been ten years since the promulgation of the Constitution of Kenya, 2010. A constitutional text that was hailed as being liberal, transformative and a cure for Kenya’s electoral violence cycles. The 2009/10 constitutional review process was conceptualised through the Kenya National Accord and Reconciliation process led by the African Union Panel of Eminent African Personalities chaired by the late and former UN Secretary General H.E. Kofi Annan with other members of the Panel being the late and former Tanzanian President H.E. Benjamin Mkapa and H.E. Graca Machel. When the 2007/08 election protagonists H.E. Mwai Kibaki and Rt Hon. Raila Odinga agreed to a truce, the reconciliation process identified long term issues and solutions that had to be addressed if Kenya was to move forward and avoid future mass conflicts.
The reconciliation process identified the following as the key long-term issues and solutions for action -
1. Constitutional, institutional and legal reforms;
2. Land reforms;
3. Poverty, inequality and regional imbalance,
4. Youth unemployment,
5. Consolidation of national cohesion and unity; and
6. Transparency, accountability and impunity.
Of note is that eleven years after the above issues were identified and constitutional reforms undertaken, the Kenyan ruling elite plans to overhaul the current constitutional text to deal with the same issues.
For the constitutional reforms, the then Constitution was amended to allow for a constitutional review process and Parliament through the Constitution of Kenya Review Act, 2008 appointed four organs for the review, the Committee of Experts, the Parliamentary Select Committee, the National Assembly, and the referendum.
The Committee of Experts had three non-Kenyan citizens and six Kenyan citizens as members. The Committee was the technical committee that reviewed all previous draft constitutions that had failed to identify issues that had been agreed upon and issues that were still in contention. A proposed draft Constitution had been rejected by the electorate in a 2005 referendum. The Committee identified the system of government, devolution and implementation of the Constitution as the key contentious issues that had to be agreed upon to somewhat guarantee the possibility of Kenyans getting a new Constitution within the proposed timelines.
Following wide consultations, political horse-trading and public engagement forums 68% of Kenyan voters voted ‘YES’ for the proposed Constitution which was promulgated on 27th August 2010. Of note in the public engagement process is the fact that the Committee used grassroot public forums, community radio, TV shows, roadshows, emails and a website to educate the public about the constitutional text and elicit comments on the various drafts presented for debate. Until this time, less than a handful of countries had employed internet technology in a constitutional review process.
In hindsight, I wish to analyse the arguments that were put forward by the ‘NO’ campaign, were the arguments, right? Did the prediction of doom materialise? It is instructive to note that none of the issues highlighted by the ‘NO’ campaign had been identified as being contentious issues after an analysis of all previous proposed draft Constitutions. Around 31% of Kenyan voters rejected the proposed draft Constitution. The ‘NO’ campaign had three key arguments against the proposed text, one, reference to abortion in the right to life article they insisted should have been dropped. Two, provision of Kadhi Courts as subordinate courts recognised by the Constitution was termed as being discriminatory and three the Land chapter was said to be a recipe for chaos.
On abortion, Christian religious groups brought about a pro-life and pro-choice debate. These groups further argued that provision for abortion within the constitutional text would bring about unchristian and unregulated procurement of abortion services. While the argument did not carry the day, Kenya’s Parliament has twice unsuccessfully debated a Reproductive Health Bill. In those two occasions the Bill has faced fierce opposition from religious groups. Though no empirical evidence exists whether promulgation of the Constitution occasioned increased abortion incidences, the continued campaign against comprehensive reproductive health education in schools and reproductive health laws are a hinderance to promotion and protection of the right to health as provided for in the Constitution.
Kadhi Courts had been part of the Kenyan judicial system since the ten-mile coastal strip was handed over to the Kenya colonial government by the Sultan of Zanzibar. One of the conditions for the handover was to allow the predominantly Muslim community at the Kenyan coast to continue practicing their Islamic faith. The jurisdiction of a Kadhi Court is limited to the determination of questions of Muslim law relating to personal status, marriage, divorce or inheritance in proceedings where parties process Muslim religion and submit to the jurisdiction of the courts. Christian groups posited that recognition of Kadhi Courts would bring about ‘shariah law’ into Kenya. They also questioned why ‘Christian Courts’ were not provided for in the text. The ‘NO’ campaign predictions on the Kadhi Courts have not come to pass.
The third ‘NO’ campaign issue was the land chapter. This limb of opposition was however championed by large land-owners who were predominantly non-Kenyan citizens and others who had inherited land that had been seized through the colonisation campaign before independence. They saw the reformulation of the land tenure system and reforms on the use of land as a threat to their continued and unfettered possession of the land. To date land remains a contentious issue. For example, some County governments have refused to allow for renewal of land leases for foreign multinational companies that occupy huge tracks of land. The County governments insist on compensation for the local communities that were disposed before independence and an increase in the taxes payable to the counties. The multinational companies have put up a spirited fight against this.
Also on land, many communities remain without proper title documents for the land they occupy, squatters invade public and private land alike and protected areas such as forests, riparian reserves, game parks have been subject to violent classes between the State and communities that wish to occupy them. Despite robust land reforms, land remains an emotive and polarising issue in Kenya. Hence, on land I would say the jury is out there on whether the ‘NO’ campaign was right or not.
Even after ten years of the Constitution, certain aspects remain unimplemented. One, the two thirds gender rule. Article 27(8) of the Constitution provides that not more than two-thirds of the members of elective or appointed bodies shall be of the same gender. The Supreme Court in 2012 gave an advisory opinion requiring progressive implementation of the two thirds gender rule but to date the same has not been implemented. Further, tens of constitutional amendment Bills have been tabled in Parliament to provide for modalities to ensure adherence to the rule but non has succeeded.
Two, comprehensive implementation of devolution remains a critical matter. There is continuous push and pull between national and county governments on resource allocation and full devolution of county powers and functions. For example, despite county governments controlling almost 90% of public health functions the national Ministry of Health has a budget bigger than the health budgets of all 47 counties combined. If it were not for the courts protecting devolution, the national government would have retained powers and functions constitutionally allocated to county governments.
Three, the State is constantly ignoring Court orders. To illustrate, recently the Courts ruled that the President had unconstitutionally declined to appoint Judges selected by the Judicial Service Commission. Despite Court decisions compelling the President to appoint the Judges, the President has maintained his stand to not appoint the Judges.
Four, the State has continuously made spirited attempts to clawback on fundamental rights and freedoms through legislation, acts or omissions. Currently, State agents use the Computer Misuse and Cybercrimes Act to silence any activists and whistle-blowers. The Act is currently subject to an appeal at the Court of Appeal, the petitioners are challenging the constitutionality of the Act.
Five, the Chapter on leadership and integrity remains largely ignored. Cronyism, looting of public resource, nepotism and impunity still thrive in Kenya. Every other day there are reports of billions of public shillings being unaccounted for or ending in the pockets of private individuals. Anti-corruption cases fail to ‘net the big fish’.
All is not lost though, the Judiciary has been a fierce defender of the Constitution through progressive decisions that somewhat ensure adherence to the constitutional text, rule of law and constitutionalism. It comes as no surprise as to why the Executive has a low opinion of the Judiciary when it suits them, even reducing budgetary allocation to the Judiciary. Devolution has ensured access to basic services such as healthcare in almost all parts of the Kenyan Republic. A liberal Bill of Rights has ensured a wider space for civil, political and social economic rights that were stifled pre-2010.
It is remarkable that we celebrate ten years of an unamended constitutional text. It is not for want of attempts. One of the attempts was by the Third way Alliance though their proposals did not garner the constitutionally required votes in more than half of the County Assemblies. Currently, there is agitation for amendments championed by the political ruling class. As indicated earlier, they propose to amend the text to address issues they have failed and or are unable to tackle. By and large, the ruling class believes amending the text to provide for more positions within the Executive will solve challenges bedevilling Kenya for decades. Granted though, I believe it is important to test the limits of the Constitution through such initiatives. Unfortunately, the outcome may not be for the best interest of Kenyans.
Unlike previous constitutional review processes, the current proposals do not address the plight of the common Kenyan. When I presided over public forums in rural Kenya in 2010, it was clear that Kenyans wanted better educational and health facilities, markets for their agricultural produce, road infrastructure and an environment that allowed them to earn an honest living. Without full implementation of the Constitution and adherence to the leadership and integrity chapter, no amount of amendments will address the real plight of the common Kenyan.
Ten years on the Constitution of Kenya, 2010 has weathered the storms and to an arguable extent brought about needed reforms. The next ten years remain crucial. I believe they will usher in further entrenchment of devolution, promotion and protection of fundamental rights and freedoms and greater accountability of how public resources are administered. But all depends on the independence and confidence within which constitutional organs such as the Judiciary, Legislature, Independent Offices and Constitutional Commissions operate. Unfortunately, the Executive currently has a chokehold on the Legislature.