From darkness to light: landmarks that make the new Constitution stand out

The new Constitution has ushered in changes that have dramatically altered Kenya’s socio-economic and political landscape.

Known as “Wanjiku’s constitution” to capture the aspirations of the ordinary citizen, the letter and spirit of the document has hit government systems like a thunderbolt, shaking its hitherto entrenched foundation of Executive authority, judicial lethargy and generally bullish insensitivity.

Some have likened the realisation of the new Constitution after nearly two decades of struggle to a bloodless revolution. (Read: Constitution heralds new dawn for Kenya- Kibaki)

Saturday Nation brings you some of the key provisions:

The end of the imperial presidency and rise of people power

The promulgation of the new Constitution this day last year sounded the death knell to the omnipotent presidency that characterised the reign of presidents Jomo Kenyatta, Daniel arap Moi and the better part of the Kibaki administration and gave immense power to citizens over their government.

The powers of the president have been significantly whittled down — his or her appointive powers have been subjected to consultations with various commissions and approval by the National Assembly.

This is a key departure from the past when then President Moi stopped by the roadside at a rural outpost and announced that he had appointed Prof George Saitoti the new vice-president and sarcastically asked the country “if that would add ugali on their sufurias.”

The president also no longer enjoys the unbridled prerogative of dismissing a State officer.

No less a personage than President Kibaki, considered the last monarch, has faced the might of the new Constitution.

In February, he ate humble pie and withdraw a list of nominees to four constitutional offices after a public outcry over the manner of the nominations, which many said were not proper.

Professional Cabinet and powerful Parliament

For the first time since independence, ministers, who will be called cabinet secretaries, will be appointed from outside the National Assembly.

The first real separation of power between the legislative and the executive arms of government, the change will bring professionalism into the running of government as the secretaries are expected to come from the areas they are trained in.

This is a major departure from the past in which an army general has held the medical portfolio.

Article 152 (1) (b) also sets the limit of the number of secretaries to between 14 and 22.

This will ensure the current situation where you have more than 40 ministers overseeing what are really departments does not arise.

Devolution

Chapter 11 of the Constitution is another exciting feature of the new dispensation.

This is a transformation that directly places ugali on the sufuria of Wanjiku by stipulating that 15 per cent of the country’s revenue, approximately Sh3 billion, will be given to the counties.

A big improvement on the Constituency Development Fund concept, this is the first time such huge resources are being poured to the grassroots.

This fundamentally changes the way citizens look at their government, a far cry from the past when they depended on the magnanimity and whims of the president.

Whole regions have been pushed into poverty and neglect because of the political position of their leaders.

The land chapter and the issue of historical injustices

The authority to allocate public land is no longer vested in the President but in an independent National Land Commission.

This is perhaps the face of the impunity of yesteryears when the president gave out water towers, national forests and road reserves to well-connected people.

Changes in the land tenure system, especially the reduction of 999-year leases to 99 years, are set to address the historical problem of absentee landlords in places like the Coast.

The requirement that public land irregularly allocated can be repossessed also provides an opportunity to address such injustices.

The Bill of Rights is one of the most progressive in the world

A disgruntled Kenyan can now go to court and compel the government to provide basic human needs.

The Constitution expressly says that nobody should die of hunger, for instance.

The two thirds clause

Article 81(b) of the constitution, provides that one principle of the electoral system is to ensure that no more than two-thirds of members of elective public bodies shall be of the same gender.

Moreover, article 27(8), which is within the Chapter on the Bills of Rights, prescribes that the state shall take legislative and other measures to implement this principle.

While it is currently facing teething problems, its implementation will fundamentally change the Kenyan work space.

Perhaps it is the sensitivity to this clause that Chief Justice Willy Mutunga appointed a record 14 female judges out of the 28 new judges.

Public vetting of prospective appointees

In the past, the country was used to hearing during the one o’clock news bulletins that someone had been appointed, or sacked, to this or that position.

The next thing, the same state radio would relay the appointee’s gratitude to the head of state for “his wisdom and faith in appointing me, or in giving me an opportunity to serve”

Thanks to Chapter 6 of the new Constitution on integrity and leadership, the public has the right to know beforehand who is being appointed and they can subject them to scrutiny.

Independence of the judiciary

The judiciary has literally been shaken out of its flowing robes and choking wigs.

This has seen the creation of the Supreme Court and the institutionalisation of stringent appointment procedures.

The Chief Justice, deputy, Supreme and High Court judges were appointed through highly open interviews.

Right from its financing and strengthening of the Judicial Service Commission, the new Constitution has brought with it a strong judiciary.

Openness in dealing with finances

Chapter 12 brings far reaching changes to handling public finances and revenue allocation.

It creates the Commission on Revenue Allocation to oversee equitable sharing of resources between national and county governments. It also makes the Finance ministry more open and accountable.

Article 221 (Budget estimates annual appropriation bill) storms the Treasury, yanks open the much-vaunted briefcase and flings it to the dustbin of history.

It now requires the Finance Secretary, now minister, to open the briefcase and lay bare its contents to the National Assembly at least two months prior to the reading of the annual estimates.

This provision effectively ends the era of surprise and attack in budget presentation.