Restore people’s faith in new Constitution

When the Constitution of Kenya, 2010 was promulgated 12 years ago, it brought immense joy and offered unprecedented optimism to the people of Kenya.

Scenes of jubilation and celebration engulfed Uhuru Park when the then president Mwai Kibaki lifted the newly minted ‘Katiba’ before throngs of excited wananchi on 28 August 2010.

This moment of happiness and triumph was not without reason. The journey to a new constitution has been rocky and torturous since the “old” constitution was enacted at Lancaster House before independence from British colonial rule.

Almost similar scenes were witnessed after the Union Jack was lowered and the black, red, green and white flag of the Republic of Kenya emblazoned with a shield to defend justice and the constitution was hoisted, anchored in the National Anthem.

However, the joy was short-lived. Just three years after independence the first rupture to the constitutional order occurred, with far-reaching ramifications on the nation’s political, economic and social agenda.

It became apparent that the constitution could be manipulated to defeat the principle of the separation of powers between the Executive, the Legislature and the Executive. The key word here is “powers”, bestowed on these three arms of government by the people.

Suddenly, the Executive, abrogated itself excessive powers in concert with a pliant Attorney-General and the Judiciary, depriving the people of their constitutional guarantees.

An all-powerful presidency brooked no form of dissent or opposition, resulting in what has been described as the nation’s “dark era” of persecutions, detentions, suppression and dictatorship. A period of relentless efforts to restore the constitutionally guaranteed freedoms, rights and powers to the people followed. Opposition leaders, lawyers, the clergy, the media and ordinary citizens united in the struggle for the “Second Liberation”.

They demanded a new constitutional order and an expanded democratic space to entrench democracy of government by the people, to the people, for the people. A constitution which guaranteed electoral justice, freedoms and the people’s rights.

That’s the reason the Constitution of Kenya, 2010 was greeted with relief, enthusiasm and hope. Indeed, the preamble explicitly stated that through God, power belongs to the people.  Decentralization trimmed presidential powers, but not enough as witnessed in protracted negotiations that led to its promulgation. That is the central factor in the current showdown between the main players in Kenya’s political scene.

The old constitution had been manipulated into a tool of totalitarianism, with a de facto one-party state to boot, electoral justice anchored in the constitution flagrantly violated.

The 2010 Constitution was born after an election system gone awry and universal suffrage abused, nearly plunging Kenya into a national tragedy after the disputed elections of 2007. It is now time to restore the people’s faith in the Constitution by sealing loopholes prone to manipulation. The hangover of disputed elections still hangs over the nation with pungent toxicity and vengeful political rhetoric not conducive to national reconciliation and cohesion.

Africa’s largest democracy Nigeria’s recent election, just like Kenya’s, have also been disputed over its conduct, especially in electronic voting systems and are destined to court, albeit with longer legal timeframes for hearing and settlement of petitions.

A critical lesson from these two similar scenarios is that the people will always fear democracy and electoral justice are jeopardized when the Executive appears to have excessive powers and is perceived to be cozy with independent electoral commissions, the Legislature and the Judiciary.

— The writer comments on political and constitutional affairs – [email protected]