Cord leaders, from left, Moses Wetang’ula, Raila Odinga and Kalonzo
Musyoka at Ufungamano House in Nairobi on August 13 where they launched
the Opposition’s collection of five million signatures for a referendum
on the Constitution. FILE PHOTO | JEFF ANGOTE |
NATION MEDIA GROUP
By FRED OLUOCH Special Correspondent
In Summary
- Four years after promulgation, Kenya’s Constitution is at a crossroads with calls for a referendum pitting the opposition and a section of Governors against the government in a political context.
- At the centre of the demands for a referendum is the implementation of devolution, a key pillar of the Constitution that came into effect on August 27, 2010.
- Insufficient understanding of the Constitution by a cross-section of actors has led to some institutions failing to adhere to or respect their roles and functions and therefore interfering with the roles of others.
Four years after promulgation, Kenya’s
Constitution is at a crossroads with calls for a referendum pitting the
opposition and a section of Governors against the government in a
political context.
According to the implementation schedule, the
country has a year to enact all the laws required to fully
operationalise the Constitution. But it is way behind schedule, with
parliament having recently extended the deadline for enactment of five
key Bills from August to March next year.
At the centre of the demands for a referendum is
the implementation of devolution, a key pillar of the Constitution that
came into effect on August 27, 2010.
However, experts blame the emerging problems with
implementation of the Constitution on the lack of “a culture of
constitutionalism and politicians’ knack for self-preservation”.
Prof PLO Lumumba, who served as secretary of the
Constitution of Kenya Review Commission that came up with the first
draft of the law in 2004 before it was disbanded, says the Constitution
in itself is not sufficient. The country needs a culture that respects
the supreme law in all operations, says the law scholar.
“While a new constitutional dispensation has
produced many positive results, Kenyans have the misconception that the
Constitution is a magic wand that can solve all issues,” said Prof
Lumumba, who has also served as a consultant in the ongoing Tanzanian
constitution review. “Kenyans themselves must breathe life into it and
make the document work for them.”
On calls for a referendum, the law don argues that
it should be held after no fewer than 10 years from the time of
promulgation to allow devolution to mature.
Nzamba Kitonga, who chaired the Committee of
Experts that harmonised various drafts ahead of the referendum in 2010,
says it is imperative that Kenyans wait until all the relevant laws have
been passed before seeking to conduct an audit of the supreme law.
While appreciating that the implementation has
progressed well and parliament has been following the procedure laid
down in the Constitution, Mr Kitonga noted that there are a few areas
where political and regional interests have negated the principles and
the spirit of the document.
One of them is the laxity of parliament in
enacting relevant laws on schedule and the tendency to bring the Bills
at the last minute, which did not allow time for proper scrutiny and
consequently gave rise to faulty provisions.
The constitutional expert cited as among the
successes of the new document the presidential election petition last
year and the devolution of power and resources.
“Kenyans are beginning to appreciate the fact that
resources have gone down to the grassroots level and that they have the
power to make decisions on issues affecting their lives,” said Mr
Kitonga.
Prof Lumumba has co-authored a book with Luis Franceschi, titled The Constitution of Kenya 2010; An Introductory Commentary,
in which they argue that the structural changes and reforms in the
judiciary under the new Constitution, although fraught with
difficulties, must be seen as an attempt to purge it of corruption,
lethargy and in some cases an arrant incompetence.
Gad Awuonda, one of the lawyers who were involved
in the drafting of the Constitution, is however concerned that some of
the laws passed have not kept to the principle and spirit of the
Constitution.
“At the beginning of every chapter it provides
principles and objectives of what needs to be done while drafting Bills
for constitution implementation, but some of them have not been
followed,” said Mr Awuonda. “For instance, land-related laws... they do
not conform to the principle of the Constitution, and that is why the
National Land Commission and the Ministry of Lands are fighting about
who plays which role.”
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