Kenya's New Constitution: Political Musical Chairs and Inertia Taint Implementation

It`s been deemed the most progressive constitution in Africa, but two years later Kenya`s new constitution faces major implementation challenges. How can these challenges be overcome?

27 August 2012 marked the second anniversary of the promulgation of Kenya’s new constitution. Hailed by some as one of the most progressive constitutions in Africa because of its comprehensive and liberal bill of rights, the new charter has been facing implementation challenges with suggestions that sections of the legislature and executive are bent on influencing the process for political expedience.

While some of the key provisions of the new constitution will only come into effect after the much-anticipated 2013 elections, the fact that a number of its stipulations require Members of Parliament (MPs) to enact laws has led to fears that MPs might end up implementing the constitution in a manner that serves their personal interests rather than the spirit and letter of the constitution.

So far,while a number of important achievements have been realised, including reforms of the judicial system and the formation of various independent commissions such as the Independent Electoral and Boundaries Commission and other offices as provided for in chapter 14, the Kenyan public has been uneasy about delays in passing certain bills. There has also been concern about the way MPs have attempted to change the Political Parties Act and the Elections Act to allow politicians to move from one party to another and the inclusion of presidential candidates or deputy presidential candidates in party nomination lists. The Constitution Implementation Commission (CIC), a body mandated to monitor the development and implementation of the relevant legislation, has contested these moves, arguing that the inclusion of presidential candidates or deputy presidential candidates in party nomination lists violates Article 90 of the Constitution, which stipulates that the nomination slots are meant for marginalised communities, people with disabilities, the youth and women. While the MPs argue that they did not ‘change even a comma of the new constitution’, the public perception has been that MPs are hijacking the people-driven spirit of the constitution to entrench their selfish interests.

The other area of concern has been the operationalisation of chapter six on leadership and integrity. The leadership and integrity laws were highly anticipated by most Kenyans in the hope that they would help rid the country of leaders with questionable integrity. Unfortunately, the Cabinet published a watered-down version of the bill that was presented to Parliament with various amendments, including the removal of a vetting process for people seeking elective offices. This bill was hurriedly passed by Parliament, and in their defence parliamentarians argued that partisan vetting agencies might use the process to lock out certain leaders. The feeling in Kenya, however, is that the amendments have rendered the leadership and integrity laws ineffective. A number of lawyers have argued that the contentious amendments to the Integrity Bill in 2012 were unconstitutional and the CIC has gone to court to seek their nullification.

While the Kenyan Parliament is seen as the major actor in the violation of the implementation of the new constitution, the executive has in some cases also failed to implement already enacted laws. A case in point is the filling of the position of Inspector General. As per the new constitution, this office was supposed to be filled within one year after the promulgation of the constitution, but it remains vacant. This appointment is seen as a crucial step towards ingraining police reforms that are key to the upcoming general election. Some have interpreted the delay as an attempt by the executive to maintain the status quo in the police force during the election period. The executive has also refused to respect the decision by the High Court on the appointment of county commissioners. The Court argued that their appointment was unconstitutional as per Section 17 of the sixth schedule of the new constitution, which makes provision for the re-structuring of the Provincial Administration. The Court also argued that the president did not have the power to appoint or deploy county commissioners. Despite the court ruling nullifying their appointment, the county commissioners have not been dismissed, raising concern about the executive’s will to implement the constitution and respect the rule of law.

Aside from the political games, one nightmare Kenya faces is the implementation of the one-third constitutional requirement for either genderin elective bodies. This provision applies to all elective bodies; the National Assembly, the Senate and county governments. There are concerns that requiring a certain number of elected people to be of a certain gender will be very difficult to realise. Although a number of meetings have been held to discuss how to ensure that not more than two-thirds of the members of elective offices are of the same gender, no amicable solution has been reached. Some have suggested that specific constituencies be set aside for women, while others proposed a quota system whereby political parties submit party lists containing equal numbers of men and women. There have also been calls to scrap the gender rule all together (something that is likely to be vehemently contested by gender groups) on the basis that reserving certain constituencies to a given gender discriminates against and violates the political rights of those left out, and that it is unworkable to open the door to unrestricted nominations and a possibly bloated government. Any attempt to establish governance structures that do not comply with the gender requirement will most likely lead to a constitutional crisis if contested in court. This debate comes against the backdrop of recent statistics that show that Kenya’s Parliament lags behind those of its East African counterparts in gender parity with only 9,8% of its parliamentarians being female compared to Rwanda’s 56,3%, Tanzania’s 36% and Uganda’s 35%. The gender rule is going to be a hard nut to crack for the Kenyan government, but a more viable long-term solution lies in promoting equality of opportunity so that women can mount strong political campaigns and compete fairly. In the meantime, the country will probably have to accept some form of quota system or scrap the gender rule.

Overall, however, with sections of Parliament and the executive driven by short-term considerations - the March 2013 elections - in implementing of the country’s new legal document, it is imperative that the Kenyan public remains vigilant, use the now promising judiciary to adjudicate any attempts to violate the new constitution, and develop a culture to make the country’s new charter work. Otherwise, the new constitution could, like the country’s post-independence one, end up becoming a casualty of political struggles and entrenched interests. Kenya’s new constitution has the potential to radically redefine the country’s governance fabric and promote the democratic and accountable use of power, but it is Kenyans’ civic duty to check, monitor and restrain political leaders and ensure its implementation.

Emmanuel Kisiangani and Mashaka Lewela,  Senior Researcher and Research Intern, Conflict Prevention and Risk Analysis Division, ISS Nairobi

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