The Constitution promulgated five years ago this week has brought about a number of earth-shaking changes that have dramatically altered Kenya’s socio-economic and political landscape.
It has hit the government system like a thunderclap, shaking its hitherto entrenched foundation of executive authority and transferred power to the people in a manner unmatched in many democracies in Africa.
The most important of its transformations is the killing of the imperial presidency of Presidents Jomo Kenyatta and Daniel arap Moi, and the better part of the Kibaki administration.
The powers of the President have been significantly whittled down with his appointive powers having to be subjected to consultations with various commissions, and approval by the National Assembly.
The president no longer enjoys the unbridled prerogative of dismissing a state officer. This is a key departure from the past when the President could stop on the roadside and announce that he had sacked so and so from this or that position.
Renowned economist David Ndii reckons that devolution and the Bill of Rights could have reduced the president’s power by between 80 and 90 per cent.
“Beyond that, the Constitution also changes the nature of the presidency from one that exercises power through authority, to one expected to exercise it through influence… Today, if the President wants something to happen anywhere outside State House, he needs to persuade a lot of people,” he says.
Both President Mwai Kibaki, considered the last monarch, and President Kenyatta have faced the might of the Constitution whenever they attempted to work as if Kenya was still in the old order.
President Kibaki was in 2011 forced to eat the humble pie and withdraw the list of nominees to four constitutional offices after public outcry over the manner of their nomination, while President Kenyatta’s edict in April that police recruits report at Kiganjo College in his bid to tackle terrorism was ignored.
In the old dispensation this would have been virtually unimaginable. “Previous presidents could issue virtually any order they wanted which the provincial administration would enforce promptly anywhere in the country,” contends Dr Ndii.
Chapter 11 which establishes devolution, is another revolutionary feature of the new laws. 15 percent of the country’s revenue is now being dispatched annually to counties, the first time such huge resources are being poured to the grassroots.
Whereas for a long time citizens have looked up to the magnanimity of the all-powerful president to get even the most mundane of projects in their village, Chapter 12 of the Constitution has brought about openness in dealing with finances.
It created the Commission on Revenue Allocation to oversee equitable sharing of resources between national and county governments. It also makes the Treasury more open and accountable to the public.
“In the old system where the money would be spent was left to discretion of ministers and bureaucrats. (Now) the residents of that place determine what the money will be spent on. This makes resource allocation more transparent, comprehensible and amenable to public participation,” Dr Ndii explains.
The authority to allocate public land, the face of the impunity of yester years, is also no longer vested in the President but in an independent National Land Commission. This means the President can no longer dish out water towers and road reserves to well-connected people.
SEPARATION OF POWER
For the first time since independence, ministers, now called cabinet secretaries, have been appointed from outside the National Assembly. While some CSs have not completely distanced themselves from politics, this is the first real separation of power between the legislative and the executive arms of government.
There is also a limit set on the number of secretaries who can be appointed — between 14 and 22, reducing wastage.
In the grand coalition government of President Kibaki and Prime Minister Raila Odinga there were 42 ministers some running small departments, several of which are now being effectively manned by one secretary.
While the two-thirds clause which stipulates that no more than two-thirds of members of elective public bodies shall be of the same gender has not been met, its implementation will fundamentally change Kenya.
Oljororok MP John Waiganjo said the Judiciary is also more independent and progressive in its rulings.
“The Chief Justice, his deputy, supreme and high court judges were appointed through highly open recruitment interviews. Right from its financing and strengthening of the Judicial Service Commission, the new Constitution has brought with it a fairly strong Judiciary,” Mr Waiganjo, also lawyer, said.
He said the independence of the Judiciary can be seen in the numerous rulings and judgments some of which have not favoured the powers that be. But some commentators felt that the gains of the Constitution were at risk of being chipped away through the executive control of Parliament which they said could reinstall dictatorship through repressive legislations.
Opposition leader Kalonzo Musyoka raised the alarm bells when he said: “Jubilee, through its control of Parliament, has drafted many Bills which are intended to roll back the gains of democracy and Kenyans should be vigilant.”
Former Subukia MP Koigi wa Wamwere said: “I agree the constitution is good, but we didn’t want an ornament when we fought for a progressive supreme law. We wanted a Constitution that fulfils our promise of eradicating corruption and bad leadership.