Excessive presidency has trampled upon the loft promises made from blood and tears

Who will tell the guards guarding Government premises that the thieves are already inside? - Anonymous 

The current Constitution was promulgated on August 27, 2010, after a long and protracted clamour defined by mass protests in which thousands of patriotic Kenyans shed tears, lost lives, limbs and properties.

The proclamation marked the replacement of the 1963 constitution that had been amended beyond recognition by 1992. More significantly, the 2010 Constitution was adopted by the Kenyan people through a referendum on August 4 of that year. 

From the outset, it might help to remember that the campaigns in support of the draft were led by President Mwai Kibaki and Prime Minister Raila Odinga whilst those opposing it were led by the current President, William Ruto. In the end, over 65 per cent of Kenyans voted in favour in order – to quote the preamble – to “live in peace and unity as one indivisible sovereign nation” that upholds “human rights, equality, freedom, democracy, social justice and the rule of law”. 

The 15th anniversary is therefore a big deal despite the temptation of disappointed sections of Kenyans to wonder whether the current constitutional order is worth the blood, tears and sweat shed to secure it. There are three major reasons why this milestone is worth celebration. 

First, the promulgation meant that in one fell swoop the reign of the previous constitution that had enabled tyranny, oppression and economic subjugation between 1966 and 2002 came to a sudden end. Secondly, the adoption of the new Constitution brought to an end the era of the imperial President and the centralised State in which the life and future of our country revolved around a mere mortal who happened to occupy the State House. Thirdly, the new Constitution gave Kenyans in their collectivity a golden opportunity to establish a Republic which – in the words of Article 4(2) – would be “a multi-party democratic State founded on the national values and principles of governance referred to in Article 10”. 

It cannot be gainsaid that generally the Constitution has been a force of good and Kenya is definitely a better county because of it. To say this, however, is no denial of the fact that in many significant ways the fruits and promises of the 2010 laws remains a mirage and may never be realised unless we overcome the many obstacles that keep emerging.

To be sure, the transition was bound to be both risky and complicated. Equally, the transition from President Uhuru Kenyatta to President William Ruto was bound to be both onerous and politically challenging because of the rising national debt problem and aggravated economic woes. Indeed, in his book A Leap into the Future, Kisumu Governor Anyang’ Nyong’o observes:

"Authoritarian regimes do not only mess people up by arbitrarily interfering with their lives and making them serve the powers that be through political coercion, they also make life generally unpredictable. If and when they do good things, it is always with a heavy dose of benevolent dictatorship that in turn thrives on the gratitude of slaves and not the spontaneous approval of free persons."

Let us start with the good news, six of which are worth mentioning. The first major gain is a legal framework for the establishment, operation and ethos of a constitutional, democratic Republic in which ultimate sovereign authority vests in the people who may exercise it directly or indirectly. Moreover, all public power and authority must be exercised in the name of the people and for their ultimate benefit or interest. 

Secondly, the 2010 Constitution provides for the establishment of a democratic government founded on the people’s sovereignty, doctrine of separation of powers and multi-partyism.  The President, who is the head of state and government, is directly elected under rules that ensure the votes of all Kenyans in the 47 counties count. The President is elected together with a deputy president who assumes office in the event of a vacancy in the office of the President.

The Constitution also provides for a bicameral Parliament with exclusive authority to make laws, defend the people’s sovereignty, oversight State organs, national revenue and its expenditures and to represent Counties and protect their interests. Elected members serve for a fixed term unlike in the previous constitutional order where the President could dissolve Parliament. 

Thirdly, the Constitution establishes an independent Judiciary headed by a Chief Justice and a deputy appointed by the President in accordance with the recommendations of the Judicial Service Commission (JSC) and subject to the approval of the National Assembly. The other judges are appointed in accordance with the recommendation of the JSC. In short, unlike in the old dispensation, the judicial officers are not beholden to the President and so nothing in law bars them from exercising judicial powers independently in defence of the people’s sovereignty, public interest and the rule of law. 

Fourthly, the devolved system comprises a national government and 47 county governments to undertake the functions set out in the Fourth Schedule. The key objectives of devolved governments include fostering national unity by recognising diversity, promoting social and economic development in the grassroots and ensuring equitable sharing of national and local resources. Courtesy of devolution, over the last 12 years at least Sh3.7 trillion have been disbursed to the counties and there is noticeable progress in hitherto neglected regions. This is a welcome change from the centralised government in which the President could channel public resources to some select areas whilst others suffered imposed backwardness as political punishment or ethnic prejudice. 

Fifthly, the Constitution provides for an extensive, progressive and modern Bill of Rights enforceable by the High Court. It bears noting three things about this. For the first time, new categories of rights like socio-economic rights, special and group rights have been included for protection and enforcement. Secondly, the Bill of Rights can only be limited through written law and such limitation must be reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. Finally, four of these categories cannot be limited under whatever circumstances, namely, freedom from torture, cruel, inhuman or degrading treatment or punishment, freedom from slavery or servitude, the right to a fair trial, and the right to an order of habeas corpus. In practical terms, the real sting of our Bill of Rights is that so long as the individual and collective conscience of the High Court judges is not dead, no latter day tyrant will ever succeed in re-creating the Nyayo era type of dictatorship of the 1980s. 

The sixth major gain of the 2010 order is that it establishes an electoral system and process that can deliver free and fair elections so long as the members of the Independent Electoral and Boundaries Commission refrain from selling their souls to Mephistopheles and the Supreme Court of Kenya exhibits sufficient integrity to resist the temptation to make political deals with a President-elect. 

Undoubtedly, it is possible to mention several other hits of the new constitutional order, but for now fairness demands that we list several shortcomings and misses. We shall restrict ourselves to only six. 

The first glaring shortcoming is that whilst the 2010 Constitution it provides, in text and theory, for democratic and accountable exercise of state power, in practice the political equilibrium tilts in favour of the Executive with the consequence that for all practical purposes the President operates as a de facto dictator, whether benign as with President Kenyatta or malevolent as currently exhibited by President Ruto. There are both legal and political hypothesis on why the Constitution has not been able to eradicate presidential abuse of power and tendencies towards tyrannical rule. 

From a legal standpoint, the Constitution envisaged that the devolved system of government, Parliament, the Judiciary and independent offices would separately or collectively provide adequate checks and balances and guard against abuse of presidential power. Clearly, this has not been possible for reasons that will hopefully become apparent in the succeeding paragraphs.

From a political perspective, the 2010 Constitution presumes that the Ethics and Anti-Corruption Commission, the IEBC and the courts would enforce Chapter Six of the Constitution to safeguard the political organs of government from being taken over by a coalition of criminals, economic saboteurs and political bandits. The outcome of the 2022 General Election is a sobering tale of the failure of Chapter Six, which deals with leadership and integrity. 

The second notable miss is the dysfunction that continues to plague devolution in Kenya. The makers of the Constitution imagined that given half a chance, citizens in the 47 Counties would respectively elect decent and competent people as governors and MCAs. Tragically, even in advanced, high literacy counties like Nairobi, Uasin Gishu and Kiambu, the voters have chosen to elect free felons, brokers, "wash wash" brothers and political bandits as governors and county assembly members. Furthermore, counties are quickly developing into employment bureaus and soup kitchens rather than units of production and social-economic progress. In short, on a scale of one to 10, objective people would be hard-pressed to give devolution a score of more than four. 

The third loss relates to the failure of successive Parliaments to rise to the occasion since the promulgation day. In many ways the 11th and 12th Parliaments seemed to have interpreted their roles as assisting the Executive to achieve the broad arms of government as set out in our new Constitution. Unfortunately the 13th Parliament has been fully captured by the Executive, the Speakers are moral cowards and regular sycophants of President Ruto. The situation has been aggravated by the decision of the legendary reformist Raila Odinga to turn into a house negro while pretending to suffer the toil of a field negro. 

The fourth significant miss is the apparent failure of the higher judiciary, particularly the Supreme Court, to breath life into Chapter 12, which deals with public finance. It is depressing to observe that the State is becoming increasingly incapable of meeting minor obligations like catering for the needs of vulnerable groups like pregnant women and the elderly, providing government support to students, providing health care, avoiding oppressive taxation and avoiding economic sabotage of people considered as hostile to the President.  

For all practical purposes, the national budget has been turned into a charade despite the elaborate procedures in its making. Thus in July of a typical financial year, the State House may be allocated Sh3 billion but by the end of the financial year it would have spent Sh12 billion. Furthermore, Uhuru and Ruto governments continued to incur debts through opaque methods and use the same to finance recurrent expenditure despite the express prohibition by the law. 

The fifth shortcoming is the glaring failure by holders of independent offices to do their job with vigour, passion and integrity. In the offices of the Director of Public Prosecutions and Attorney General, Bernard Chunga and Amos Wako remain the golden standards, and there is no guarantee that the current IEBC will not outdo the Electoral Commission of Samuel Kivuitu in terms of impunity. The less said about successive police chiefs under the current Constitution the better because they are yet to wake up from the slumber of the Nyayo era compromises.  

Finally, we must say something about the inconvenient subject of a rogue presidency and the failure of the respective incumbents under the 2010 Constitution to transcend themselves. Among other things, Article 131(2) provides that the President must respect, uphold and safeguard the Constitution, promote and enhance national unity and ensure the protection of human rights and fundamental freedoms and the rule of law. On a scale of one to 10, it would not be easy to give President Ruto a score of three on these yardsticks.  

Perhaps because Ruto was against the adoption of the 2010 Constitution, he seems genuinely contemptuous of it except to the extent that it empowers him to do whatever is necessary to achieve sectarian objectives. If Ruto truly respected the supreme law, Eliud Lagat would not be the Deputy Inspector General of Police. Similarly, Aden Duale would be sacked already as Cabinet Secretary for Health in the wake of the unfolding scandal at the Social Health Authority. Additionally, President Ruto would not have appointed a partisan IEBC to preside over a life and death General Election in 2027. As The Economist magazine editorial put it about one month ago, it would be in Kenya’s national interest if President Ruto were to opt out of the 2027 presidential race. Since he is unlikely to do so, we must fasten our seat belts, cry for our county and hope for the best despite all the bad omens and the gathering clouds of a political Tsunami. It is a truly tragic fate for the 2010 Constitution. 

kibemungai@yahoo.com