Ignoring Wanjiku in law implementation was a blunder but this must change, says Charles Nyachae

The Constitution and its applicable laws required that we do civic education. But as a country, we have not done well and because of that, it has been a little difficult for Wanjiku to be fully engaged in the process of implementing her own Constitution. If we were to do that differently, it would make a big difference, CIC chairman Charles Nyachae says in an interview with the Nation’s AGGREY MUTAMBO

It is five years since the Constitution was promulgated, could you summarise the journey so far?

To understand this journey, it is important to look at the background and context in which Kenyans adopted this Constitution. The principle point is that the independence constitution, which by itself had been amended so many times to the point of mutilation, had, by general acceptance, failed the people of Kenya.

The main concern with the independence constitution was the imperial presidency and the worry that the economic and political decisions of the country were being made by a few individuals and in a manner that was not directly accountable to the people.

The 2010 Constitution sought to address this from several perspectives, two of them being the reorganisation of State power between the three arms of government, and the aspect being vertical through devolution.

This is the benchmark we use to evaluate our journey.

What have been the high points of this Constitution and its implementation?

Our Constitution was not designed to be self-implementing, it contemplated that there will be laws, regulations and systems in place to give it effect. The high point for me is the putting in place of those various pieces of legislation that the Constitution required for it to work for the people.

The main legislation that the Fifth Schedule contemplates is well on course. Of course, currently, there is this huge debate about possible timelines (with the August 27 having passed). But quite frankly, I think the issue is being overblown. That should not be preoccupying the people right now, what we should be applying our minds on is the quality of those laws because the Constitution is for posterity.

The Constitution provides for extension of timelines. So as far as I am concerned, we are focusing our energies inappropriately.

In relation to that, what have been the low points?

There are challenges of two categories. One is what I would call routine challenges of keeping the timelines. In any undertaking, say school homework, you have the challenge of keeping the time so that doesn’t worry me so much.

What would worry me are those challenges that could actually affect the question of “would we successfully implement it or not?” Those relate to things like, do we fully understand the Constitution? Do we understand the role of the various organs that are created by the Constitution? Do we have a positive mindset towards the Constitution and its implementation or are we resisting the change that the Constitution seeks to achieve.

Our job as a commission is to monitor, coordinate, facilitate and oversee the implementation but the actual implementation is done by the government and its various agencies. The challenge is that those implementers have the right mindset, are amenable to the transformative change that the Constitution seeks to bring and that they put the interest of the people of Kenya first and foremost.

There is a feeling that the Constitution is flawed in the way it structures the internal security system. It appears no one is fully in charge, especially during national crises. What is your take?

That is not a problem of the Constitution. By the way, if one takes time to look at the Constitution and the various provisions that relate to security, I think they are very clear. I think they are well organised.

I think the challenge is one of implementation because I don’t see how clearer the Constitution could have been in regards to the role of the National Police Service, the Inspector-General of Police, and the operational command aspects that are given to the two deputy Inspectors-General of Police.

The problem is not with the law. Like in many other issues, law is implemented by human beings. And when dealing with human beings, there are many dynamics at play. There are issues that relate to an understanding of roles, an acceptance of those roles. You may get personality issues. You may get crossed lines because of human nature.

If you were to do it again, what would you do differently?

I am not sure there is much that we would do differently because the challenge that we have had have related more to implementation partners in the sense of other players in the process. For example, the challenges we have had from time to time, have been either with Parliament, for example. or with the Executive.

I am not sure, we as a commission, will have much to change other than maybe looking for new and innovative ways of how to engage with the principal agencies. But if you ask me what as a country we should do a little differently, one of the main things we would do differently is civic education.

The truth of the matter is five years down the line, the Constitution and its applicable laws required that we do civic education. But as a country, we have not done well and because of that, it has been a little difficult for Wanjiku to be fully engaged in the process of implementing her own Constitution. If we were to do that differently, I think it would make a big difference.

Other things are just normal dynamics. For example, one of the big challenges of devolution which has not been accepted but I think history will prove me right, is that the three-year transition to devolved government, with the benefit of hindsight, should have been a little longer. As it is, the process did not even utilise the three years. The governors came into office and demanded the immediate transfer of functions.

The truth of the matter, and I will continue to say this although the governors don’t like to hear it, there is a reason why the Constitution talked about phased transfer. And there is a reason why they gave that three-year period. And some of the challenges we have had are because we did not follow the law by doing it gradually.

Are there mistakes in this Constitution that need to be corrected, on issues that concern devolution, for example?

The Constitution is a framework which is subject to interpretation. It is subject to how those who are required to implement it have done that. So, there is not really much that I would quarrel with the Constitution as a framework. It is how we interpret it and put it into practice.

In many ways, while acknowledge the many challenges we have had, I think we should not be too harsh on ourselves. Remember, we adopted a radical and transformative Constitution and we seek to implement that change in a scenario that is not itself radical.

Countries adopt a constitution, for example after a war. A war is a devastating radical thing so when you bring in any new radical changes through a new constitution, it fits into the environment.

Some have argued that this Constitution was a very expensive burden for Kenyans. What is your comment on that?

It depends on what we mean by expensive. Are we just looking at shillings and cents in the normal direct way?

Take for example, what Chapter Six of the Constitution tries to do to address the issue of leadership, address the issue of ethics in public office, corruption and so on. So you ask yourself, if that is properly implemented, complete with a commission, isn’t the country gaining? You may think we are spending a lot of money, but isn’t the country gaining?

If you look at fairly detailed chapter 12 on public finance management, we are trying to inculcate prudent management of public resources.

Again, very importantly, our governance system. When I have been out on county visits and you talk to those people in Turkana on the experience for the last 50 years, it becomes clear that “expensive” as devolution might be, it is not expensive if we look at it from the point of view of what it is doing to bring the country together, it is not expensive if it means that for the first time, people in North Horr in Marsabit County are going to feel the presence of public health medicare.

This question of expense is little exaggerated but the other side is, it may be expensive yes. But we have to live with it. For example the issue of representation, what makes it expensive is our own orientation based on our history.

Logically, why do we need more than 20 counties? We would save a lot of money with 20 counties, but which two counties in Kenya would be willing to merge? Even those who speak one language. I always give the example of my home county Kisii and the neighbouring county of Nyamira, the same people, we used to be one administratively — one district.

If today you told them that it makes a lot of sense and we would save a lot of money if you merged into one county, it won’t happen. I think we need to be honest with ourselves.

Expense is not about the Constitution. The expense is that there is a cost to the way that we have historically viewed and arranged ourselves and what it is that will be the minimum to enable us live us a nation.

Part of what is making it appear to be an expensive endeavour is the challenges we are facing in implementing it. And if Kenyans changed their mindset, the cost element will become less of a concern.