Too many interests stand in the way of the Constitution

Legal experts and politicians are warning of serious hindrances to the implementation of the Constitution as the country marks the fourth anniversary of the charter drawn up after more than two decades of agitation.

This comes amid a push for a separate referendum by the Opposition Cord and a group of governors to change parts of the document.

Ahead of what the framers of the 2010 Constitution had marked as the most important deadline — but which Parliament has now extended —  critics pointed to an onslaught from the Executive and Parliament in the last few years that weakened some laws initially meant to raise the bar in the management of public resources and expansion of civil liberties.

“Deep-seated interests pose three types of threats or challenges to the implementation of the Constitution of Kenya 2010. These interests seek to retain the status quo, reverse the gains, or manipulate the content, direction, and pace of reform or implementation,” writes Prof Ben Sihanya, a law lecturer at the University of Nairobi, in the publication, Constitutional implementation in Kenya, challenges and prospects.

And when last Tuesday MPs from both sides of the House set aside their differences to extend the time required to prepare and pass six key Bills to March 2015, Mr Charles Nyachae, the chairman of the Commission on Implementation of the Constitution, raised a warning flag, saying the agreement was part of a scheme to scuttle the full implementation of the laws.

Mr Nyachae argued that the extension beyond the August 26, 2014 deadline was unjustifiable, adding that the lawmakers had had sufficient time to discuss the Bills and finalise them before the end of this month.

“Other than the Public Audit Bill, the Public Procurement and Asset Disposal Bill, all the other Bills can be concluded within the timelines set out by the Constitution,” he said.

Other Bills affected by the postponement include the Public Service (Values and Principles) Bill, Environmental Management and Coordination Bill, and Persons Deprived of Liberty Bill.

But even as the parliamentarians extended the implementation deadlines, questions linger about their commitment to the letter and spirit of the Constitution.

Law Society of Kenya chairman Eric Mutua argued that three of the five laws passed by the National Assembly were unconstitutional — a trend he said betrayed the original intention of the framers and those who endorsed the document in the August 2010 referendum.

“The National Assembly has on many occasions come up with laws that are glaringly unconstitutional,” he told the Sunday Nation yesterday. Chapter 6, which touches on integrity, has often been held up as an example of an important area with weak legislative support. Kisumu Senator Anyang’ Nyong’o, a top member of Cord, accused Jubilee of using its numerical strength in Parliament to pass unconstitutional laws.

“The problem is Jubilee has embarked on a serious assault on the Constitution. The so-called tyranny of numbers in Parliament has meant there is no listening to voices of reason,” he said.

Council of Governors chairman and Bomet Governor Isaac Ruto accused the government of deliberately taking steps to sabotage devolution.

WEAKEN DEVOLUTION

“This government has continuously sponsored Bills meant to weaken devolution, and unless it stops, the country will not realise the envisaged benefits of the Constitution,” he said.

He blamed the state of affairs on what he calls the old political order, old civil service mentality, “tenderpreneurs (corrupt networks that thrive on government tenders) and Treasury mandarins that are very busy strangling devolution”.

Mr Ruto also decried the lack of commitment among intellectuals and the youth to push for full implementation of the Constitution.

“The number of people to rely on in this fight is dwindling by the day. As intellectual poverty is marooning the society, especially the youth, the Press is busy pursuing trivial matters while the intellectual class has been co-opted into the government, or it is busy looking for money,” he said.

Mr Mutua said there was resistance from the Executive and Parliament to efforts to give life to the new set of laws.

“The Executive has continuously ignored decisions by independent offices and the courts. You remember when President Mwai Kibaki ignored a High Court ruling that the appointment of county commissioners was illegal and most recently miscellaneous amendments have eroded a lot of gains we have made in terms of civil liberties,” he said. The Jubilee Government has, however, continued to insist that it was committed to the full implementation of the constitution.

“Despite the challenges we face, we shall ensure the Constitution is fully implemented so that we can grow the economy by double digits and address the inequities in the development of the country,” Deputy President William Ruto said recently.

There was an unsuccessful push to have a new set of laws in 2005 when the proposed document known as Wako Draft was shot down in a referendum by forces coalescing around Orange Party leader Raila Odinga, now the head of Cord.

The post-election violence of 2007/2008 and the Grand Coalition government formed as a compromise, presented an opportunity for drafting a new constitution under Agenda Four on national dialogue mediated by former UN Secretary-General Kofi Annan.

But four years since the Constitution was passed, there have been complaints that a two-tiered system of government and a bicameral legislature was too expensive. Last Thursday Parliament last threw out a proposal by Mwingi MP Joe Mutambu to reduce the number of counties from 47 to 10 to cut costs.

However, Prof Sihanya disagreed with those citing costs, saying that constitutional democracy was expensive but far cheaper than dictatorship.

“If effectively implemented, this document will finance itself. If the systems were working as they should, it would be very affordable. The same theories you see being advanced now came to the fore when the United States was moving from a confederation to a federal government yet today it is one of the most progressive places,” he said on Saturday.

Four years on. the Constitution faces the prospect of the first major amendments with calls for a referendum.