Will the new constitution really change politics and society in Kenya?

We need to realise that if left to the politicians to implement, it will end up serving their own personal interests

My former professor and mentor, Professor Yash Ghai writes that “in general, as we know, a constitution is not a self-operating or self-executing instrument….The real task of establishing constitutionalism lies in other spheres: politics as construction of values and policies, the judiciary entrusted with the task of authoritative interpretation of the constitution, the rise of professionalism and civic associations to suffuse the public space with economic and social values and practices, enlightened leadership and public participation and vigilance of the people.

The ultimate control of the state must be by society, but if the state subordinates society, that control becomes impossible.”

Voted overwhelmingly

In a nutshell, we have an answer to the question posed by this article. As Kenyans who voted overwhelmingly for a new constitution, what should we do to ensure that our will is done?

As a teenager, the independence constitution gave me great pleasure. I proudly wore the medal the colonial government gave us as part of the independence celebrations. In my village in Kitui, independence meant we could now walk to the area in Kitui town where whites lived, something we could not do before because of colonial apartheid.

Our political leaders gave us hope of change in the country, however, it was change that oppressed us. As I grew up, I realised that constitutions that are left to politicians and bureaucrats to implement end up serving their personal interests and not those of the people.

Kenyans had become passive in their quest for material needs and were continuously divided on the basis of ethnicity, race, religion, region, clan, gender and generation.

Constitution-making for me became a matter of changing the mind-sets of Kenyan people, focusing on their material needs and building a nation that could only prosper if we had leaders committed to these values and ideals. Fortunately, there were many other Kenyans who shared the same commitment.

The journey towards progressive change is always a challenge as most people prefer to sit in the ‘status quo’. The new constitution gives me hope saddled with the skepticism of those decades we tried to convince Kenyans that until they became the guardians of their constitution and rights, held politicians and bureaucrats accountable, understood their entitlement to live a dignified life, the status quo that fundamentally made them poor will continue to enslave them.

The forces of anti-reform that we have faced, both internal and external, have not gone away. They remain powerful. However, over years the power of the people has made them make concessions that have been consolidated and subsequently used as a basis for further democratic demands.

We have a new constitution and Kenyans have started shaking the shackles that have held them in bondage, be they political, bureaucratic or religious leaderships.

Let us not think that having a new constitution means it will be implemented. It is our individual and collective responsibility to ensure this.
We can draw lessons from two countries in Asia and from South Africa to understand what needs to be done to implement our new supreme law.

In 1997, Thailand adopted a constitution that was not different from our new one. The president, Thaksain Shinwatia, subverted it through extreme corruption by ignoring the provisions on the appointment of an independent judiciary and disregarded various procedures that would have strengthened institutions created under the constitution. He mobilised his support in the rural areas through patronage and divisive politics.

As a result, the people were not vigilant and poor political leadership sabotaged the implementation of what was a good constitution. For his troubles, Shinwatia was overthrown by the military.

Murderous civil war

Sri Lanka provides yet another example. The country adopted a constitution based on the French system under which the president and the prime minister share power. On paper this constitution was not bad.

The president, Mahindra Rajapakse, subverted the constitution, resulting in weak institutions. He violated procedures on appointments and trampled upon the rights of minorities. He made Buddhism the dominant religion and mobilised his support among his people, the Sinhalese. Ethnicised societies do not care for human rights of other communities.

The result has been a murderous civil war that continues to claim the lives of both Sinhalese and Tamils.
The South African constitution was as robust as ours. South Africa had an energetic implementation strategy resulting in a relative success story.