Dead letter constitutional principles

Some Kenyans believe that part of the solution lies with amending the Constitution. The proposed popular initiatives reinforce and seek to tap into this public sentiment. However, the economic woes cited are due to poor leadership, weak governance structures and helpless constitutional bodies. In fact, the Constitution is yet to be fully implemented (emphasis mine). - Mugambi Laibuta (Popular initiatives to amend Kenya’s constitution: A misdiagnosis of the problem?)

To my knowledge, no constitution is immune to criticisms of inadequacy. Even brand-new constitutions suffer from political demands that almost always lead to calls for amendment. Kenya's Independence Constitution was amended within one year of Uhuru. The US Bill of Rights is made up entirely of constitutional amendments which were adopted a mere two years after the effective date of the US constitution. Therefore, there is nothing unusual about the demands to amend the Constitution of Kenya a mere nine years since it was promulgated.

Public sentiment in Kenya on matters of public importance tends to be shaped by political activity, especially the activities of leading national politicians. It has been so since the establishment of the republic in 1964. At every critical political turn, national political voices have shaped how Kenyans thought, what they did about it and when they did. Over the past seventeen years, the public policy question du jour has been constitutional reform "that accommodates all stakeholders". And over the past five years, the constitutional lament has been that the "constitution has not been fully implemented". Combined, these two things have shaped and reshaped politics in Kenya since August 2010 in one form or another.

Punguza Mzigo, the Thirdway Alliance proposal for constitutional amendments by popular initiative, is the polar opposite of the received political wisdom of accommodating all stakeholders. It flies in the face of what all leading national politicians have been campaigning for ever since it became clear that Raila Odinga's chances of presidential glory are all but dashed forever. It refuses to acknowledge that while many individuals want a reduced tax burden, increased "development", better employment prospects and peaceful electoral contests, few of them really object to "mtu wetu" being a member of the executive, legislature or judiciary. It is why the only people who murmured disapprovingly about the appointment of Chief Administrative Secretaries were the ones who laboured under the un-Kenyan delusion that "Government must be lean" in order to save public funds and deliver effective public services. They are the ones who constantly remind us that the constitution has not been "fully implemented" as if full implementation is an end in and of itself.

There are many constitutional values and principles that are notable because of the short shrift they have received from the three arms of Government, none more valuable, in my opinion, than meeting the two-thirds gender principle. In the appointment of the Cabinet, the principle has been flouted. The same is true of the Supreme Court, the upper levels of the public service, the management of state corporations and constitutional commissions, and, of course, both Houses of Parliament. Various arguments have been advanced as to why it has not been possible to do so, none of which is persuasive. Punguza Mizigo offers a solution though it is a solution that comes at a heavy price, one which few Kenyans are willing to pay.

Full implementation, in my opinion, remains a mirage so long as the constitutional culture fails to hold people to account, especially leaders in the executive, parliament or the judiciary, when they fail to live up to their constitutional obligation as they try and balance competing political interests. For example, there is no reason why the Chief Justice of Kenya must be a man or why men must form the majority on the Supreme Court. There is no reason why the Cabinet should not be split 50/50 between men and women or why women PSs should only land "soft" departments. Parliament's persistent failure (refusal?) to push through the only constitutional amendment with broad support to raise the representation of women is an indictment of its particular insular retrogressive culture.

There are no easy solutions. Whatever we choose to do to bring all constitutional principles and values to fruition will require great sacrifice. But so long as we believe what the politicians tell us, that they alone have the answers, and that the answers require no pain, full implementation will not happen. Once we recognise this truth, perhaps we can hold all of them to account. Mr Justice Maraga and his Judicial Service Commission, Mr Speaker Muturi and his Parliamentary Service Commission, and H.E. President Kenyatta and his Government have in their hands the power to lead the political changes we need. Their political cowardice is the reason why the two-thirds gender principle is dead letter law today.