Fifteen years later, promise of change still at a crossroads

Was the 2010 Constitution of Kenya intended to be a meaningless absurdity? This is the impression the political big boys give.

Read together with Article 10 of this mother of all laws and regulations in the country, Chapter Six of the Constitution speaks to values and integrity in leadership. Yet, was this chapter, especially, designed to disappoint?

Since 2010, Kenya’s political power barons remind us of Shakespeare’s gloomy words in the tragic play King Lear.

The king’s confidant, Gloucester, reflects on the tragic ebb and flow in the human condition. He remarks, “as flies to wanton boys are we to the gods, they kill us for their sport.” 

The sport is never ending for Kenya’s political gods. It is the daily grind for the ordinary citizen to endure the whims of the giants.

Every so often, they float constitutional changes, seeking to better the game. They want easier access to more flies.

To the power barons, ordinary folk count for little, beyond electoral statistics. The gods are indifferent to what three decades of the struggle for the Constitution were intended to achieve for the citizens. 

Sometimes they will openly defy it. When they don’t, they will reward the nation with weak laws that subvert the noble goals of the Constitution.

Once hailed as the most progressive source of law in the global history of laws, for this class, Kenya’s Constitution is a meaningless set of marks on paper. President William Ruto and ODM leader, Raila Odinga rank highest in this regard.

The law is nothing but a hindrance, if it does not deliver what they desire. It will be ignored. But if it cannot, then it must be changed. Accordingly, Raila is now proposing a third tier of government, to introduce seven regional counties, above the present 47. Integrity in Kenya’s leadership is questionable. 

The framers of the Constitution kept the chapter on leadership and integrity fairly brief, maybe so that we could all read and understand it?

It only has seven articles, on three pages, and one third. At the end, they entrust Parliament with the sacred duty of enacting laws that will actualize  integrity in leadership, especially on the political landscape.

Parliament went on to give the nation weak laws. It watered down the notion of value-based leadership, and everything in the seven articles of Chapter Six.

Kenyans have seen individuals survive impeachment in Parliament, despite terrible indictments against them. One governor went on to win a second term, after multiple impeachments by the county assembly.

The Senate sanitised him in circumstances that continue to confound citizens of goodwill. Persons charged with murder, rape, and what amounts to grand larceny have been cleared by various authorities so that they can occupy high public office.

Rape, theft and murder cases are dropped overnight, to give the miscreant a new lease of life in public office. 

In 2010, it was expected that public service would henceforth be methodically freed of thugs and sundry gangsters.

It was also expected that other forms of depravity in the government would end. State House itself would transform into a sacred place that would lead by example.

Accordingly, as spelt out in Article 73, leaders would understand that to lead was a privilege, and not a right. They would be selected “based on personal integrity, competence and suitability,” as stated in the article.

It is difficult to define the competence, integrity and suitability that a murder suspect brings to leadership.

This is despite the fact that she has just undergone political sanitisation. Kenyans remember the “mwosho mmoja” euphemism after the March 2018 handshake between Odinga and President Uhuru Kenyatta.

One splash of sanitiser was enough to free you from public accountability. Raila’s “Capitol Hill” private offices became the headquarters of sanitising reprobates.

Individuals whom he had rebuked over the infamous Eurobond and National Youth Service scams were seen and heard, in TV footage, guffawing as Raila literally administered sanitiser upon them. Today, the Ruto government is replete with individuals with questionable histories.

They belong to both divides of the Ruto-Raila broad-based government.  

Article 75 of the Constitution expects that leaders shall not bring disrepute to the office. Nor will they hold any other gainful employment, if it is perceived to be in conflict with public interest.

Kenyans have heard a woman legislator make allegations about horrendous disreputable sexual conduct by  multiple office holders who should know better.

They have also seen senior public officials playfully pinch women leaders’ cheeks in public, almost as if they were warming up for acts of darkness.

They have also heard leaders who should be exemplary, mouthing lustful jokes, and engaging in physical displays that can only be described as prurient and devoid of any redeeming social value.  

In parts of the country, a senior leader will be listened to best, if he begins by asking those in the audience if they are properly “primed up,” as in priming for horizontal refreshments. Male and female high level public officials then pair off.

They are, for example, in a school called Agoro Sare. Right there, in front of students and parents, they break into pre oyster shucking displays, to wild applause.

The youth pick up the cue. They break into amorous congress moves of their own. This done, adult loud mouths return. They crown their ill-mannered performance with verbal vulgarity. 

Leadership Kenyan style does not end there. It must wear bare-faced defiance of the Constitution. Executive overreach and ignoring of court orders is not uncommon.

“Shoot to break legs” and  “shoot to kill” orders  by the President and his officials speak to overreach by the Executive.

Article 248 of the Constitution establishes the Kenya Police Service is an independent entity, alongside other autonomous commissions and offices.

Orders to the police to shoot citizens are unlawful, for absence of command mandate, and for the criminal nature of the command.

The Constitution says that any direction given to the Inspector-General (IG) of Police by the Cabinet Secretary responsible for police services shall be in writing.

It is not known that Interior Cabinet Secretary (CS) Kipchumba Murkomen gave the shoot to kill order in writing. For President Ruto, he was clearly in an overreach scenario.

For, while the Constitution, under Article 245 (4) grants the CS authority to issue directions to the IG on policy issues, no such mandate is given to the President. 

Beyond this, however, the CS is restricted to addressing policy guidelines in his directions to the IG. He is barred from giving orders on enforcement of the law against any particular person, or persons.

The question of whether a demonstrator is a particular person, or a general person is debatable. From a general functional space, it could be argued that the CS only issues a policy guideline on how to deal with demonstrators, without singling out a specific one.

Yet, when Rex Masai is shot in the legs and dies, he is no longer a member of a general crowd of demonstrators. He becomes an individual, killed by the police, on directives from the CS. The killing is in the docket of unlawful Executive overreach. 

This kind of overreach repeats itself in other guises, some seemingly quite harmless. A case in point is the multi-sectoral task force that is supposed to investigate corruption in Kenya, since 2017.

While the drawing of the straight line on the starting point is itself suspect, the Executive clearly hijacks the duty of the Ethics and Anti-Corruption Commission.

The Commission, while not listed among independent entities in the Constitution, is understood in law to be independent in its investigative assignments. 

The Auditor General and the Controller of Budget are two custodians of leadership integrity who are constantly under verbal assault by Kenya’s political leadership.

Parliament has made these two offices regular punching bags. Parliament’s own role of oversight is weak. None other than President Ruto himself has publicly accused MPs of turning the August House into a barter market.

Favours are traded in for money, the President says. He must know what he is saying, possibly as one of their clients.

For, it appears that State House has itself been complicit in these auctions, possibly beginning with vetting of its nominees, who need approval by Parliament before taking office. 

At its most blatant, Parliament has not questioned the source of monies that the political elite dish out in voter treatment, ahead of the 2027 elections. Such funds are splashed about in public forums that have been dubbed “empowerment.”

Rather than ask questions, MPs jostle and queue up, canvassing for such funds to come to their constituencies, too. Graham Green’s novel titled ‘‘Doctor Fischer of Geneva’’ best captures the scornful attitude of the benefactor as he stares at his greedy clients.

Persons who should ordinarily be dignified are serially humiliated in exchange for handouts. They grovel before the big man, striving to catch his eye for rewards. Even when he ridicules them in speech, they laugh it off, anticipating the reward.

Such is integrity and value proposition in leadership, Kenyan style. State House will ask for a flawed affordable housing levy law, and legislators will deliver.

They will give him Social Health Authority laws, and pass a bad Finance Bill, provided that State House wants it passed. They long forgot about separation of powers and checks and balances between the Executive and the Legislature. 

Fifteen years after promulgation, Kenyans are still at a crossroads. They set high benchmarks for their nation in 2010.

There is basically no problem with their constitution. In many other ways, this Constitution has withstood turbulent tests.

It defied Building Bridges Initiative (BBI) efforts to amend it through the backdoor. It nullified a presidential election. It has impeached a deputy president, and three governors.

It has jailed a governor whom it previously impeached. Yet there are still issues with Chapter Six, the one chapter that the political class, especially, dreads. 

They hate it for calling them to be accountable and for demanding firm enforcement of the law; as in seeking that everyone will be equal before the same law.

That those who have taken the oath of office and that of allegiance will respect and protect the law. Most important is protecting the Constitution and the law from their own whims and appetites.

The Ethics and Anti-Corruption Commission (EACC) has been asking for more powers, especially the power to prosecute. The Integrity House team believes that the challenge resides in watering down its investigations by other authorities. Yet there is no guarantee that EACC will not itself abuse such powers, if granted.

Their own hands have not always been seen to be very clean. They tend to suddenly spring up investigations against political dissenters, only to drop them as soon as the would-be reprobates begin toeing the straight and narrow state line. More powers to them do not seem to hold the answer.

Transparent governance and financial accountability mechanisms have also not worked, beyond cataloguing the cases. Cabinet Secretary nominees, for example, disclose before Parliament their personal wealth and worth at the time of seeking approval of appointment.

Thereafter, nobody monitors their status, or behaviour. Suddenly, individuals whose plight has been very well known become billionaires. And that seems to be quite fine. Now everything works in the framework of impunity.

So, how do you deal with impunity? This would seem to be the riddle to be cracked. The shortest route to ending impunity is in State House.

It begins with the President. He must make a firm decision that everyone is going to be governed by the Constitution and the law. Uncompromising political will, Lee Kuan Yew style in Singapore, is a must.

The President leads by example. His Cabinet follows. There is zero tolerance to corruption. Elite impunity must be the first enemy to be crushed. Moral  authority from high up there will flow down to all places below.

Supported by harsh penalties for thieves, the tide should begin changing. Even the lewd moral decay will melt away. For, the lewdness we see is only an external symbol of the deeper rot within. 

But as all this fails, as it does because of absence of will, then citizens must take over. They have the duty of democratically removing the persons in power. The trends in the Kenya Kwanza government, so far, are harrowing.

Kenyans need to take advantage of the voter registration recently announced by Independent Electoral and Boundaries Commission (IEBC) to begin preparing to remove the present regime.

It demonstrates total lack of will for reform.

A second term under it would make for total disaster. Kenyans don’t have to like or dislike President Ruto.  He really must retire. It is either him or the Constitution.

Dr Muluka is a strategic communications adviser