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Has Kenya changed one year after the new Constitution? An outsider’s view

Wednesday August 31 2011



Last week was the first anniversary of the new Kenya Constitution.

If you asked me as an outsider what has changed in the country because of the new constitutional order, I would say a lot.

Of course, it is a different issue altogether whether those changes and others to come will be enough to make Kenya a different and better country in the near future.

What are some of these changes?

The easiest one is the appointment of Dr Willy Mutunga as Chief Justice.

Mutunga is ideologically on the left, and has very liberal views on gay relationships, women’s rights, divorce, religious and cultural diversity, justice and geopolitics.


He also stubbornly, and wonderfully, insists on wearing his ear-stud, which he says is a connection to his ancestors.

My sense is that Mutunga is easily the most liberal chief justice in the world.

His appointment suggests that Kenyans and its otherwise conservative Establishment are willing to take a gamble on a radical shift in the legal order.

The second is how Kenyans have responded to the Kenya for Kenyans campaign to raise money and resources to help the millions threatened by famine in the northern part of the country.

The response has been billed as the most successful in Kenya’s fundraising history, and it could actually hit the Sh1 billion mark.

I sense that is a result of a greater sense of ownership and a new acceptance of greater civic responsibility by the public, plus a growing awareness that the new Constitution did actually give quite a bit of the country back to the people.

The third has been the response to the dispute of the Lake Victoria island of Migingo with Uganda.

On this one, I must be neutral, but while both President Mwai Kibaki, Parliament, and politicians from western Kenya have argued that Migingo belongs to Kenya, it is only in recent months that the demand that the Kenya flag be seen to be flying over the island became important.

I think that because of the re-organisation of the country into counties which has given Kenya a near-federal structure, local nationalism is higher.

That means that the government in Nairobi cannot afford to be aloof if it wants to be credible with the counties.

It has to embrace their local nationalisms – especially of the counties at Kenya’s borders.

The flag therefore gains greater symbolism in the dispute over Migingo.

The fourth sign that Kenya is under a new Constitution is the number of people saying they are going to run for presidency.

So far, there are about 12. One can expect that there will be more. One reason is that the new Constitution has made it both harder and easier to run for presidency.

Harder because the requirement that a candidate must get more than 50 per cent of the vote nationally, and at least 25 per cent in each of the 47 counties, means that one must have a high national profile and a lot of money to make the cut.

But because the new election system almost makes second-round run-offs inevitable, it has created a situation where bad candidates can win in run-offs because the electorate have little choice.

Most importantly, however, the view is spreading that the new Constitution has stripped the presidency of a lot of its old powers and prestige, and that it is a “small” job compared to being governor of a rich powerful county.

The stakes for the presidency, therefore, are lower and any Tom, Dick, and Mary can throw their hat into the ring.

The fifth indication of change is in the media. There is a new weekly newspaper on counties published by The Standard, and The Star newspaper has broken tradition and from its page six, and sometimes page five, it has given the rest of the news pages to County News.

NTV has spent the last year doing a hugely successful County Edition series.

If you talk to the teams that have traversed nearly every nook and cranny in the country reporting on the series, they have a fascinating new view of the counties and also the obstacles that each has to overcome to find greatness.

If the Constitution had not re-ordered the country into counties, NTV’s County Edition would never have been.