Implementing Kenya's Constitution Like Shooting at a Moving Target
A year after its promulgation, Kenya's new constitution is still far from being fully implemented. Politicking amongst the decision-makers ahead of the 2012 elections is largely to blame.
Published on 30 September 2011 in
ISS Today
By
Andrews Atta-Asamoah and Nyambura Githaiga, Senior Researchers, African Conflict Prevention Programme, ISS Nairobi Office
Kenyans overwhelmingly supported the promulgation of a new constitution in August last year, demonstrating their common desire for an entirely new legal framework and a new dispensation characterised by peace, respect for human rights, good governance and accountability.
Coming after the worst post-election violence in the history of the country, as well as unsuccessful previous attempts to realise a new constitutional dispensation, the desire was real. Like every change of dispensation, however, the pomp and pageantry that graced the initial public launch quickly gave way to the harsh realities of politicking and implementation challenges.
However, in a style synonymous to its prowess in athletics - which we saw again recently at the World Athletics Championships in South Korea - Kenya is scaling the hurdles and making strides towards realising its dream of a new constitutional dispensation.
There also seems to be a remarkable increase in support for the new constitution since the implementation process began, and many who voted against it have started reconsidering their stance. This is important because public support remains a necessary driver for the process and its leadership.
Notwithstanding the overwhelming mass public support for constitutional processes, converting national zeal into real change requires neutral leadership that is void of party politics. In many African cases, this usually calls for institutionalising the process and establishing the requisite oversight structures. Oversight structures are clearly indispensable to reform processes since they serve the purposes of monitoring and accountability, which are crucial to changing the status quo.
In Kenya, the establishment of the Constitution Implementation Commission (CIC) and the Constitution Implementation Oversight Committee (CIOC) of parliament is therefore commendable, as these bodies effectively institutionalise the national quest and provide robust oversight for its implementation. Since their establishment, the CIC and the CIOC have been at the forefront of monitoring progress, coordinating processes, reporting, building the involvement of the people and applying the requisite pressure on various government agencies.
Furthermore, a year of the constitution implementation process has led to a great many reform initiatives in the Kenyan judiciary. These are aimed at providing the basis for rule of law and stable governing institutions, which are the hallmarks of the new dispensation. There has also been the introduction of a new vetting process for the judiciary, the appointment of a new chief justice, and the swearing in of five Supreme Court judges, all of which have helped increase public trust and respect for the institution.
Given that the judiciary is both a barometer of the legal sensibilities and the main guarantor of the constitution, progress in judicial reform is key to providing a solid framework for governance and rule of law.
The process has also seen theenactment of key laws and acts of parliament supporting the provisions of the new constitution. Since the substance of a constitutional dispensation is in the enactment of reform-oriented laws, this is an important achievement.
However, there are questions about the quality of these instruments, as they were not thoroughly scrutinised by parliament before being passed. Time constraints saw a dramatic race by parliamentarians to approve 12 new laws in just seven days, which left many doubting the process.
Achieving all this has not been easy, not least because political attention is currently focused on the 2012 general elections. The battle for individual and party political interests is drowning out any coherence and unity of purpose among the leadership for implementing the new constitution. It is also shifting focus away from reforms. The irony, however, is that implementing the constitution is crucial to the next election.
There are also delays in establishing certain critical institutions to implement aspects of the process. One of these is the Independent Electoral and Boundaries Commission (IEBC), which is required to demarcate the new boundaries indicated in the new constitution.
Also delayed is reform of the security sector, which will be crucial if the Kenyan security sector is to provide security over the election period. Allegations that the security sector did not adequately perform its function during the post-election violence of the last general elections indicate the need for urgent reform in this sector.
Another challenge relates to certain technicalities in the implementation process.The new constitution is a product of extensive trade-offs between different Kenyan sectors, political fronts and stakeholders. It is thus a negotiated document borne of political compromises. At this stage of implementation, many of those unmet interests now appear to be coming back to haunt it.
There is also confusion over some of the provisions of the constitution. Despite the political leadership’s preoccupation with the 2012 elections, the actual date on which they are to be held remains unclear, with fierce debate around the proposed August date and the conclusion of the five-year term of the current parliament.
There are also issues about the realisation of gender parity. The constitution provides that women should form one third of the new governance structures. It is, however, not clear how this will be achieved. There are proposals for laws to regulate it by either incentivising or sanctioning political parties so as to push them towards achieving a one-third representation of women.
Another major challenge to the implementation process can be summed up as a conflict of cultures. Some argue that despite the promulgation of a new constitution, the country’s political landscape and leadership do not appear to have nurtured a culture of constitutionalism. This raises fears that the constitution implementation process may not achieve its full objective as it may not be implemented according to the principles by which it came into being.
Other dimensions of the conflict of cultures are, for example, political ethnocentric tendencies and the widespread existence of conservative political views. While the spirit of the new constitution points to the idea of change, these values may conflict with its realisation.
The ongoing implementation process in Kenya seems akin to attempting to shoot a moving target, such is the complexity of the process amidst rapid reforms. However, achievement of key milestones, such as judicial reforms, provides hope that the rest of the process stands a chance of delivering the Kenyan dream. So far, however, it is clear that although the dream may be in sight, it is still some tortuous distance from becoming a reality.
