Have Kenyans gained enough in the Constitution since its inception ten years ago?

Ken Amondi, An Advocate of the High Court of Kenya-Photo Courtesy  

By Dickson Odhiambo

August 27, 2020

Have Kenyans gained enough in the Constitution since its inception ten years ago?

KENYANS ushered in the new Constitution on August 27, 2010 and today the country marks exactly ten years since the document was promulgated on that day after being voted overwhelmingly during the National Referendum that was held on August 4, 2010.

The new Constitution did away with the old one which emphatically had the issue of Imperial Presidency at heart with so much immense powers where two Presidents namely Kenya’s Founding Father Mzee Jomo Kenyatta and Daniel Toroitich Arap Moi ruled with serious iron feast under this constitution.

Both have since died with Kenyatta passing on in August 1978 and Moi having his final bow this year in February.

Kenya’s third President Mwai Kibaki ruled under the old constitution during his first term in office from December 30, 2002 to December 2007.

 After winning with a landslide, Kibaki was sworn-in to take over from the late retired President Moi who had fronted Uhuru Kenyatta as his apparent heir to succeed him as the Third President of the Republic of Kenya but this did not occur as Narc floored Uhuru Kenyatta of the then Kanu hence formed the Government.

During Kibaki’s second  term was mostly characterized by the Formation of the Grand Coalition Government between Former Prime Minister Raila Odinga and former President Kibaki, it was the time when the country passed the new constitution paving the way to allow Kibaki to rule for his second and final term in office.

President Uhuru Kenyatta and his Deputy Dr. William Ruto got into power fully after March 4, 2013 polls under the new constitution and they are now doing their second and final term in office after their re-election till the year 2022 when another General Election will be held under this new constitution.

The issue of the Building Bridges Initiative {BBI} is also with Kenyans as it seeks to make some amendments to the 2010 Constitution ahead of the 2022 polls.

The biggest question Kenyans are asking themselves whether the document which they voted for wholeheartedly has made serious gains  to them in terms of Good Governance, Patriotism, National Unity, Rule of Law, Sharing and devolution of powers, Democracy and participation of the People, Human Dignity, Equity, Equality, Social Justice Inclusiveness, Human Rights, Non-discrimination, Protection of Marginalized, Good Governance, Integrity, Transparency and Accountability and Sustainable Development as enshrined in Article 10 of the Constitution that talks about National Values and Principles.

Other areas of Interests to the Public include Chapter 11 that talks extensively about Devolutions, Bill of Rights which is found in Chapter four, Public finance among other chapters within the document.

An Advocate of the High Court of Kenya Kenneth Amondi says a decade of having a new constitution should be something celebrated if at all there are gains made so far since 2010.

Amondi says Article one of the Constitution tasks Kenyans with the Sovereignty of the constitution which gives them the Sovereign power as belonging fully to them.

Amondi says this particular chapter has not fully been recognized by a section of public officers working under the different three Arms of the Government, adding that some of them have been abusing it for example, a number of Court orders have been disregarded by even some senior officers working within the two of the three arms of the Government namely Executive, Legislature and Judiciary.

He says all the three arms of the government should be respecting, defending and upholding the Constitution.

“On a number of occasions, we have seen to the extent of the Executive wing of the Government have violated the issue of court orders `and this has been against the spirit of the constitution that directs us to abide by the rule of law at all times,” Amondi says.

On Chapter four of the constitution that address the issue of the Bill of Rights, Amondi says it is true this has been enhanced in different ways and some progress has been made so far.

He says a number of Kenyans whose rights have been violated have been addressed in line with the Provisions of the Bill of Rights, adding that some have moved to court and been awarded damages as a result of their human rights being violated.

The Lawyer says indeed even the robust police reforms have been carried out so as to conform to provisions of Chapter four of the constitution.

The History of Police reforms in Kenya begun in the year 2003 when the Police Reforms Task force was formed.

 

Between the year 2003 to the year 2007, the Governance Justice, Law and Order Sector Reforms {GJLOS} program focusing on accountability took place.

 

In the year 2007 General Elections, police were put on the spot following the role the service played.

 

In the year 2008 to 2009 a Commission of Inquiry into the Post-Election Violence {CIPEV} headed by the now Court of Appeal Judge Justice Philip Waki was formed in the aftermath of the 2007 General Elections.

 

The CIPEV report implicated the police in the acts of professional misconduct.

 

 In the year 2009, a task force headed by the retired Judge Justice Philip Ransley and it came up with 200 recommendations mentioning that police must be reformed and retrained, restructured for an efficient and effective service delivery.

 

Between the year 2009 to 2012, the Police Reforms Implementation Committee {PRIC] was formed to fast-track and Coordinate the implementation of Ransley report which some of its recommendations adopted in the formation of the constitution of Kenya 2010.

 

PRIC collapsed all the 200 recommendations in the Ransely report and came up with only four pillars of the Police reforms that include Legislative, policy and institutional reforms, Police Accountability and Professional reforms.

 

The other one is Administrative, operational preparedness logistical capacity, police tooling and Kitting.

 

In the year 2013, the Ministry of Interior and Coordination of National Government established the Police Reforms Steering Committee{PRSC} and the Police Reforms Program Document has also been developed.

 

The transformation and reforms in the National Police Service is part of the journey in the entire service that should be embraced.

 

Amondi however says there are still some challenges with the issues of Human Rights as some vices like extra-judicial killings by the police is sometimes being experienced as well as the issue police using excess powers to arrest suspects, adding that what happened to the Senators recently who were arrested in the wee hours of the night is an example of police using excess powers against the spirit of human rights.

 

“We still find that there are some lapses which has been there in terms upholding human rights hence there is need for all the arms of the government to respect the Bill of Rights,” Amondi adds.

 

Lawyer Amondi adds that the other Chapter that should be checked whether some gains have been made is Chapter Six on Leadership and Integrity.

 

He says  still there are questions of integrity among some public officers, adding that it should be re-looked at and Kenyans should ask themselves whether the provisions of this chapter is being fully implemented.

 

He says what Parliament did ahead of the Last General Election was not right at all by watering down the Leadership and Integrity Act, Kenyans should think on how the Chapter can very much effective whether through a National Referendum.

 

On Chapter seven about Representation of the People, he says the first principle in democracy is a fair, free and transparent elections held after a specified period of time that is entrenched in the constitution.

 

Amondi says that the biggest question is whether there has been free, fair and transparent elections, adding that some elections for example of the Governors, Senators, MPs and MCAs have been a bit fair conducted by the Electoral body from their perspective despite having some few challenges here and there.

 

He however opines that there has been a problem with handling the Presidential Election in the country, adding that in some instances it has been pre-determined.

 

“It is as if most Kenyans are fed up with the way Presidential elections have been handled by the electoral body. Kenyans are observing that there may be a clique determining the outcome of the polls,” he says

He suggest that there should be reforms in the electoral body which is the IEBC where those who are fully in charge of the elections must be held personally responsible in terms of costs and damages.

 

“When an election is held and there is a petition in court especially the Presidential polls then the IEBC Commissioners should be ready to pay for the cost of the suit and damages caused. The damages which may arise through a poorly managed polls, then this should be put on those who are in charge of the election,” Amondi adds.

 

Amondi says such a proposal has been suggested by a Supreme Court in Malawi and the same principle can be applied in Kenya here during the elections, adding that such will help to restore confidence about the elections hence will help in restoring stability where those who loose fairly will be very much ready to accept defeat.

 

“Properly managed elections will also help in restoring investors’ confidence after every electioneering period,” he adds.

 

On Chapter 11 on Devolution, Amondi says devolution is fully entrenched into the COK 2010 but has it been fully implemented as per the spirit of the constitution which ushered it after the 2013 March 4 general election.

 

Amondi adds that to some extent, devolution has helped in bringing development in some counties but the issue of alleged cases of massive corruption at the county level is to blame for the slow development in a number of counties within the country.

 

“There were some parts of our country where accessing them was a problem but after devolution, at least some development have taken place where road network have been put in place hence making such areas accessible,” Amondi further says.

 

However, Amondi says the matters of corruption looks like as it has been also devolved within the devolved units, adding that this makes the members of the public complain that service delivery has been hampered with due to this vice.

 

He says the only way out to help in stemming out corruption at the grass root level is to fully put proper structures in place and  strengthen the various organs like the Ethics and Anti-Corruption Commission, the DCI  among other bodies.

 

“Even the County Assemblies must also play their role of oversight fully so as to offer serious checks and balances to the executive wing of the county governments,” Amondi says

 

Amondi says the funding of the County Governments should also be enhanced from the current 15 percent of the national revenue, adding that with good funding of the devolved units the public will realize the true meaning of devolution if only proper checks and balances are fully offered by the concerned authority.

 

He says on the formula of Revenue Allocation from the National Government to Counties the principle of equity should fully be applied, adding that this will surely ensure that those area that were seriously marginalized will come up and develop fast.

 

“The Senate must strive to come up with a formula that cut across the board and should apply the principle of equity. This is because a significant amount of money still remains at the national level at 85 percent,” Amondi concludes.

 

ENDS: