taking stock: challenges and prospects of implementing the constitution of kenya, 2010

8/9/2019 Taking Stock: Challenges and Prospects of Implementing the Constitution of Kenya, 2010

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Challenges and Prospects ofImplementing the Constitution

of Kenya, 2010

AFRICA CENTRE FOR OPEN GOVERNANCE (AfriCOG)


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Foreword ..........................................................................................................................................................................Abbreviations and Acronyms...........................................................................................................................................

1. Introduction ....................................................................................................................................................................... Negative ethnicity ..................................................................................................................................................... Regional imbalances ................................................................................................................................................ Unemployment and class disparities ........................................................................................................................

2. The path to implementation ............................................................................................................................................... Implementation progress matrix ............................................................................................................................... Review of existing laws to realign them with the Constitution ............................................................................... Reforms of existing institutions ................................................................................................................................

3. Civil society and implementation of the Constitution ......................................................................................................

4. Challenges in implementing the Constitution ..................................................................................................................

5. Implementation under the new political order ...................................................................................................................

6. Strategies of implementation .............................................................................................................................................

7. Conclusion .........................................................................................................................................................................

Contents


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AfriCOG - Africa Centre for Open Governance

AG - Attorney General

CSOs - Civil society organisations

DPP - Director of Public Prosecution

IEBC - Independent Electoral and Boundaries Commission

JSC - Judicial Service Commission

K-NICE - Kenya National Integrated Civic Education

NPSC - National Police Service Commission

ODPP - Ofce of the Director of Public Prosecution

WPA - Witness Protection Agency

Abbreviations and Acronyms


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Kenya promulgated a new constitution on 27 August2010, which forms the foundation of the states

reorganisation and governance. The Constitutionsets the framework for a series of institutional andlegal reforms to be realised through constitutionalimplementation, aiming to consolidate the rule oflaw, democracy, human rights, transparency andaccountability in governance, and good governance. Tomeet this objective, the Constitutions framework isdesigned to work through the enactment of new laws,the review of legislation in place at the promulgationdate to ensure conformity with the new constitutionin a systemic and progressive manner, establish newinstitutions of governance and transform existinginstitutions. This paper documents progress inimplementation of the constitution with an emphasison transparency, leadership and integrity and electoral, judicial and security provisions.

Constitutional foundationsThe former constitution was seen as primarily astipulation of supreme law in the traditional sense.It was perceived to emphasise the coercive nature oflaw, rather than its underlying norms; it establishedstate institutions and provided for their functions,but contained limited opportunities for accountabilityand transparency in both the institutions and theirprocesses. It gave limited attention to the issues ofnation building, relegated the protection of individualrights, and, through numerous amendments, weakenedthe accountability structure.

The Constitution of Kenya 2010, on the other hand, is

value laden. The preamble sets out the aspirations ofthe people of Kenya for the organisation of their state.The rst chapter declares the sovereignty of the peopleand supremacy of the Constitution as inseparablenorms upon which the objectives of nation and state-building are founded. It asserts Kenyas position in

the ranks of civilised nations by giving direct effectto the general rules of international law.3 According

to the Constitution, state power is delegated power,rst divided between two interdependent levels ofgovernment and then separated among distinct butcoordinated state organs with intrinsic checks andbalances.

The current constitution, in a departure from theprevious one, sets out the national values andprinciples of governance.4 Each chapter furtherprovides organising principles that are meant to aidits interpretation and implementation. Identiednational values and principles of governance are:

a) patriotism, national unity, sharing anddevolution of power, the rule of law, democracyand participation of the people

b) human dignity, equity, social justice,inclusiveness, equality, human rights,non-discrimination and protection of themarginalised

c) good governance, integrity, transparency andaccountability

d) sustainable development.

These national values and principles of governancebind all state organs, state ofcers, public ofcers andall persons who apply or interpret the Constitution,enact, apply or interpret any law, or make or implementpublic policy decisions.

The Constitution, in laying a strong normativefoundation, grapples with the problem of nation-building. It recognises the diversity of Kenyanpeople, the need to deliberately create a nationalidentity and to strive at a common vision. The strongfocus on nation-building recognises the underlying

3 Article 2(5), Constitution of Kenya4 Article 10, Constitution of Kenya

1.0 Introduction

Taking Stock: Challenges and Prospects of Implementing the Constitution of Kenya, 2010


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issues affecting Kenyan society: the politicisationof ethnicity and lack of accountability have emergedas some of the main challenges to governance andnation-building affecting the cohesiveness of the

Kenyan state today.

The development of a new constitution was meant toredress some of the underlying governance challengesexperienced by the Kenyan state. These challengesthreatened the very social fabric holding the nationtogether and became more pronounced during the2007/2008 post election crisis, forming part of theAgenda Item 4 discussions at the Kenya NationalDialogue and Reconciliation Initiative. The discussions

included negative ethnicity, regional imbalances,unemployment and class disparities. 5

1.1 Negative ethnicityEthnicity has been an issue of concern in Kenyanpolitics since independence. While it becomes mostprominent during electoral periods, it underlies thegeneral social and political organisation. The schemeof the Constitution is sensitive to the lesson wellstated by Tom Mboya,6 that people have done theirworst in attacking tribalism by never differentiatingwhat was positive and worth preserving. TheConstitution therefore makes a deliberate attempt torecognise Kenyas diverse heritage; it provides for thepreservation of culture and promotion of languages.The vision of this nation-building scheme is that goodgovernance and economic progress will necessarilywiden interaction between people, thereby creatingother binding common interests that are independentof tribal afliation. In this sense, the positive elementsof identity complemented through a wider sphereof interaction, should serve to counteract negativedivisions and facilitate true integration. This challengeruns through the Constitution and should informlegislative development.

1.2 Regional imbalancesGeographical imbalance is a persistent cause oftension in economic development in Kenya. This isparticularly due to the following: inheriting a colonial

economy that privileged the high yield agriculturalbelt at the cost of other areas; systemic governmentpolicy to undermine development in certain parts ofthe country, due to the perceived hostility of theseareas to the political administration; and unofcialmarginalisation. Slow economic growth and lackof clear afrmative action policies to equalise thecountry are perceived to sustain the legacy of thecolonial economy. The Constitution makes a deliberatestep to provide for devolution of power and resources

and recognises the need to redress historical regionalimbalances. It therefore has a clear agenda tomainstream marginalised groups and areas in nationalplanning and goes on to establish a framework forafrmative action.

Any proposed legislation and policy must thereforeintegrate the measures envisaged in the Constitution.The National Dialogue and Reconciliation Initiativepremised nation-building on greater devolutionof resources to diminish the effects of profoundimbalances. Increased development will facilitate thefeeling of national belonging and help to achieve theobjective of nation-building.

1.3 Unemployment and class disparitiesSigns of dissatisfaction about employment and classdisparities in Kenya are manifest through labourstrikes and industrial action. The World Banks SocialAnalysis Report (2006) makes a direct link betweenlack of employment and social disparity and the levelof crime.7 The report nds that Kenya ranks amongthe top in Africa in terms of violent crime, while theNational Dialogue and Reconciliation agenda foundyouth unemployment to be a major driver of the2007/08 post-election violence.

5 The Kenya National Dialogue And Reconciliation (KNDR) Monitoring Project,Project Context and Summary of Findings Report, January 20096 Tom Mboya,Freedom and After, Andre Deutsch 19637 Report available at:http://web.worldbank.org/WBSITE/EXTERNAL/TOPICS/EXTSOCIALDEV/ visited on 18th August 2013


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Addressing the issues of employment and social justiceis therefore a critical concern of the new constitution.Social justice is provided for under the equality andnon-discrimination provision in Article 27, the labour

relations provision under Article 41 and the economicand social rights provision under Article 43. Theserights are stated in positive language with furtherobligations by the state to take steps to ensure theirenjoyment. National and county legislation, policy andplanning must therefore seek to give effect to thisfundamental constitutional objective.

2.0 The path to implementation

Recognising that there would be implementationchallenges requiring concerted efforts to coordinatedifferent state institutions and agencies, theConstitution establishes two key agencies taskedwith the ultimate responsibility of overseeing andcoordinating its implementation: the Commissionfor the Implementation of the Constitution 8 andthe Parliamentary Constitutional ImplementationOversight Committee.9 These two bodies play thecritical role of coordinating and overseeing the faithfulimplementation of the Constitution.

Implementation of the Constitution is to be pursuedthrough a number of interventions broadly capturedunder the following elements:a) Develop enabling legislation. The Fifth Schedule

to the Constitution sets out laws to be enacted togive full effect to the Constitution. This provisionis informed by the fact that the Constitution isa document setting out general principles andthat the details of issues to be legislated canbe better dealt with through ordinary Acts of

Parliament, which are exible in their enactmentand amendment. However, these Acts are tobe developed within the general principles andparameters set out by the Constitution. The

Fifth Schedule identies those laws whosedevelopment is crucial to the full implementationof the Constitution. The Schedule further providesa time frame for the National Parliament to enactthese laws.

b) Streamline laws with the Constitution byreviewing existing legislation. Even though theConstitution establishes a new institutional,legal and normative framework for governance,

it preserves, for purposes of legal continuity, theexisting laws, subject to review, rationalisation,harmonisation or interpretation, with theadaptations necessary to ensure conformity withthe Constitution.

c) Reform existing institutions to make themresponsive and aligned to the Constitution. Thesereforms target the autonomy and management(including their nancial management) of keygovernance institutions such as those in the judicial, security, electoral and public sectors.Some institutional reforms have been pursuedthrough legislative interventions and othersthrough administrative change in the structuresand composition of the concerned bodies.

d) Set up key institutions and roll out newgovernance structures. The Constitutionestablishes various commissions and independentofces, 10 tasked with the overall responsibilityof protecting the sovereignty of the people,and securing the observance by all state organs

8 Section 5(1), Sixth Schedule of the Constitution and Section 4, Commission for the implementation of the Constitution Act, 2010 provides for the esfunctions of the Commission for the Implementation of the Constitution9 Section 4, the Sixth Schedule of the Constitution10 Article 248(2) sets out the commissions and independent offices to be: the Kenya National Human Rights and Equality Commission, the National LIndependent Electoral and Boundaries Commission, the Parliamentary Service Commission, the Judicial Service Commission, the Commission on RePublic Service Commission, the Salaries and Remuneration Commission, the Teachers Service Commission, the National Police Service Commission, the controller of budget.


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of democratic values and principles and thepromotion of constitutionalism. The Constitutionalso establishes a devolved system of government,which was rolled out after the March 2013

general election. Devolved units are meant to bethe organs through which power and resourcesare devolved to the grassroots; they provide aplatform for people to participate in governancethrough local county structures. Equally, the 2013general election marked the complete transitionof the national government to the new systemenvisioned in the Constitution. This systemprovides for a National Executive comprising a


president, deputy president and not more than22, but not less than 14 cabinet secretaries, anda National Legislature comprising the Senate andthe National Assembly.

2.1 Implementation progress matrixThe tables below consider the different facets ofconstitution implementation by lookingin detail at theinterventions for implementation in the following areas:leadership and integrity; accountability in leadership;transparency and openness; public participation; andreforms, including judicial and police reforms.

Development of enabling legislation

Table A.Governance and transparency

Statute Time frame Status

Ethics and Anti Corruption Act One Year Enacted

Leadership and Integrity Act Two YearsEnacted

Draft regulations in discussion

Kenya National Human Rights and EqualityCommission Act; the National Gender and EqualityCommission Act

One Year Enacted

Salaries and Remuneration Commission Act One Year Enacted

Public Finance Management Act Two YearsEnacted

Draft Regulations in discussion

Public Service Commission Act Five YearsEnacted

Draft regulations in discussionLegislation on Public Procurement and Asset

Disposal (Article 227)Four Years Pending (Published awaiting Parliamentary

debate)

Controller of Budget Bill (Article 228) Five Years Pending (Not yet published still at AttorneyGeneral (AG)}

Central Bank of Kenya Law (Article 231) Five Years Pending (Received First Reading in Parliament)


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State CorporationsAct

The State Corporations Act is meant to make provision for the establishmentof state corporations; for control and regulation of state corporations; and forconnected purposes. The Act vests discretionary powers on the minister in theadministration of state corporations and the Constitution of their managingbodies. This can be discerned from a reading of Article 4 of the Act. Section 3gives the president the power to constitute state corporations.The provisions of the Act are presently in conict with the constitutionalvalues and principles of governance set out in Article 10 and Article 132 (4)on establishing ofces in the public service. The Constitution requires, amongother things, public participation and inclusivity, which the Act does notintegrate in the administration of state corporations.

Pending

Kenya Informationand CommunicationAct

The amendments create a Communication and Multimedia Appeals Tribunal,which falls under the State controlled Communication Authority. The Tribunalis granted power to impose hefty nes on media houses and journalists,recommend de-registration of journalists and make any order on freedom ofexpression. The communications authority falls under the Executive, giving thepresident and the cabinet secretary power to appoint and dismiss membersof its board. The amendments have the effect of severely restricting pressfreedom and breaching the constitutional protections granted to the media byallowing the State to play a part in regulating the media. 11

Article 34 of the Constitution provides that broadcasting and otherelectronic media have freedom of establishment subject only to licensingprocedures that are necessary to regulate the airwaves and other forms ofsignal distribution. The provision further requires broadcast media to beindependent of control by government, political interests or commercialinterests. An amendment of the Kenya Information and Communication Actwill aim to integrate the above-cited constitutional provisions within theAct. The regulatory framework of the Act must reect the constitutionalstandards of regulation of broadcast media.

Draftamendmentsenacted;

Public Order Act

The Act regulates maintenance of order in public places and seeks to controlpublic gatherings, processions and demonstrations through notication ofpolice requirements.

Article 37 of the Constitution grants the right to every person peaceably andunarmed, to assemble, to demonstrate, to picket and to present petitions topublic authorities. This right can only be restricted in terms of the provisionsof Article 24 of the Constitution and that restriction must be reasonableand justiable in an open and democratic society based on human dignity,equality and freedom. The Act requires a review to ensure that it does notunreasonably restrict the rights granted under Article 37.

Pending

11 Article 19, Kenya: New Law Marks Major Set-Back for Media Freedom, 16 Dec 2013, http://www.article19.org/resources.php/resource/37407/en/kemajor-setback-for-media-freedom


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Evidence Act

The Act provides a framework through which evidence is admitted into civiland criminal court proceedings.

Article 50 of the Constitution grants the accused the right to a fair hearing;its provisions relevant to admissibility of evidence include the right to be

informed in advance of the evidence the prosecution intends to rely on, andto have reasonable access to that evidence; the right to adduce and challengeevidence, the right to refuse to give self-incriminating evidence. Further,Article 50 (4) provides that evidence obtained in a manner that violates anyright or fundamental freedom in the Bill of Rights, shall be excluded if theadmission of that evidence would render the trial unfair, or would otherwisebe detrimental to the administration of justice.

An amendment to the Evidence Act will seek to incorporate the statedconstitutional provisions on admissibility of evidence in the course ofproceedings. The object of such an amendment will be to achieve the right to afair hearing as stipulated in Article 50 of the Constitution.

Pending

Criminal ProcedureCode

The Act makes provision for the procedure to be followed in criminal trials

and proceedings. The Act sets out the criminal trial process from the time ofarrest, arraignment in court, plea taking, bail bond requirements, trial, andexamination of witnesses, to sentencing.

Article 50(2) provides the right of every accused person to a fair trial whichincludes the right, amongst other things, to be presumed innocent until thecontrary is proved, to be informed of the charge with sufcient detail toanswer it; to have adequate time and facilities to prepare a defence; to apublic trial before a court established under the Constitution; to have thetrial begin and conclude without unreasonable delay; to be present whenbeing tried, unless the conduct of the accused person makes it impossiblefor the trial to proceed; to choose and be represented by an advocate and beinformed of this right promptly; to have an advocate assigned to the accused

person by the state and at state expense if substantial injustice wouldotherwise result, and to be informed of this right promptly; to remain silentand not to testify during the proceedings; if convicted to appeal to, or applyfor review by a higher court as prescribed by law; and to be given a copy of theproceedings.

The Criminal Procedure Code will have to be amended to incorporate therights granted to accused persons by the Constitution during the trial processand the manner in which criminal proceedings are expected to be undertaken.

Pending

There are also Acts of Parliament that have beenrepealed as a consequence of the new constitutioncoming into force and the development of enablinglegislation as required by the Constitution. Some ofthe affected legislation in the thematic areas coveredin this report is:

a) the National Assembly and PresidentialElections Act CAP 7

b) the Political Parties Act 2007

c) the Elections Offences Act CAP 66

d) the Local Government Act CAP 265.

2.2.1 Reforms of existing institutionsThe Constitution seeks to reform various existinginstitutions within the governance sector to ensurethey respect the principles espoused within it and


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perform their roles or deliver services in a mannerresponsive to the people and the Constitution.Different institutions have, as a result, been reformedto meet this requirement. Reforms initiated have

tended to take the form of administrative andstructural changes backed by legal reforms, and insome instances, personnel changes. Sectors withinour sphere of intervention that have undergonesome level of reform include the judiciary, electoralmanagement and political processes, and the securitysector. The jury is still out as to whether the reformshave succeeded in positive transformation of theinstitutions affected. The table below lists some ofthe sectoral reforms initiated.

Sectoral ReformsThe constitution has brought about demonstrablegains as several areas have seen positive change;there is an increase in openness, transparency andpublic participation in governance, an increase inaccountability of public ofcials, some institutionsthat needed to be created have been created andothers that needed to be reformed are in the processof being reformed. Challenges to implementation haveincluded irregular and illegal amendments to altercontent of Bills, by the Executive and the Legislaturewho have leveraged their vested interests to preventthe passage of important laws. These challenges toimplementation have been occasioned by delays inimplementation.

Some challenges are elaborated here below.The IEBC, which was intended to bring abouttransparent and credible election management toKenya which has a vast history of sham elections,failed at its task in the management of the 2013General Elections. Irregularities that were tantamountto massive electoral fraud and malpractice thatapparently resulted in the technological failurewere overseen by the IEBC. Consequently, the IEBCcannot be termed an effective, efcient and crediblecommission. It has been pointed out that if Kenya is

to ever have free, fair and transparent elections, thecurrent electoral commission has to be restructured,including change in its management.

The Judges and Magistrates Vetting Board seemedto be working appropriately on its part of ensuring judicial reforms through vetting judicial ofcers andallowing for the removal from ofce of those who arecorrupt and those who cannot perform their tasks asrequired by law. However, there has been an increase inthe number of law suits that have been led by judicialofcers found unsuitable by the Board. Apart from agood number of these being upheld by the Court ofAppeal, several judges sacked by the vetting team

continue to enjoy privileges such as their salariesand allowances. Some of the cases pitting sacked judges against the board have been determined bythe High Court, and the decisions later upheld by theCourt of Appeal. In addition, some have argued thatpublic interest is not sufciently represented in thecomposition and the processes of the Vetting Boardand therefore its decisions at times lack legitimacy.

Recently, there have been allegations against the judiciary, of maladministration of the institution,misappropriation and misuse of funds and overpayingof JSC commissioners. The publics condence in the judiciary can be said to have decreased. Civil societyand the public both have a role to play; they shouldremain vigilant and ensure that the judiciary remainson its reform path.

The Ofce of the DPP has also had some difculties.The ODPPs staff levels are low, with only 93prosecuting counsels, 295 police prosecutors and132 central facilitation staff; against its requisiteoptimal staff needs of 927 prosecution counsels and364 central facilitation staff. As the ofce of theprosecutor, the publics access to justice is, to a greatdegree, dependent on its effectiveness. In a countrywith an ever increasing surplus of advocates, whoremain jobless or under-employed, it is reported, that


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criminal cases are adjourned for lack of prosecutors,further contributing to the infamous backlog of casesin our courts.

The Witness Protection Agency has suffered from lackof adequate funding meant to cover, not only its day-to-day running costs, staff salaries, but most importantlythe protection and relocation of witnesses in caseswhere necessary. This seriously affects investigationsof cases especially post-election violence andothers to do with the trafcking of drugs and arms.Strengthening the judiciary without strengtheningother institutions with which it works closely, such asthe DPP, the police and the WPA means that the entire

justice system cannot function as required.

The Kenya National Human Rights Commissionalso suffered from a lack of adequate funding.Moreover, there was a long delay in appointment ofits Commissioners, occasioned by an extended backand forth between the Executive and Parliament oncandidates for the positions. These challenges, it hasbeen said, can be attributed to the government and itsneed to control the institution charged with promotingand protecting the Bill of Rights as enshrined in theconstitution.

The police reforms are being questioned. Policeabuse continues to make headlines as the lack ofaccountability for security force abusesincludingincreasing instances of extrajudicial killings, torture,and other human rights violations by the policeand the governments failure to hold accountableperpetrators of the 20072008 post-election violenceremain key concerns to be dealt with. There was a longdelay in vetting of ofcers, largely due to resistancefrom senior ofcers. The continued violence andunchecked human rights violations are fuelled by the

fact that there has been no change in attitude in howthe forces function subsequent to the passing of theconstitution; they still function as they did when theywere being used by past regimes to control, rather

than protect the citizens. Furthermore, in Parliament,proposed amendments to the National Police ServiceCommission and the National Police Service Actsdetailing illegal and repressive proposals, includinggiving police shoot-to-kill powers and whittling downprovisions designed to check police excesses havebeen forwarded and remain in the agenda for debateby members of Parliament. The force has also beendogged by allegations of friction between InspectorGeneral David Kimaiyo and the chairman of the National

Police Service Commission (NPSC), Mr JohnstoneKavuludi which were said to be caused by battling overthe power to appoint, transfer and discipline policeofcers, and recruitment of county commanders.

In general, attempts to mislead the public on someconstitutional issues have been noted and are alsohindering the implementation; this challenge can beaddressed through civic education of the public andcivil servants and an increased public awarenessabout the constitution, especially in rural areas. Thiswill enable them to be aware of the contents of theconstitution and what is expected of them in the newdispensation. Conversely, while we may have a goodConstitution, it cannot sufciently provide for themany big issues that affect its implementation andit therefore requires the political will to implement.The political class who were initially supportive ofchange, once they get into positions of power, need toremain loyal and maintain their belief in the changesthat the constitution can bring. Kenyans need toembrace constitutionalism, the constitutional culturethat dictates operating within the constitutionalframework with utmost respect for the constitution.


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Table G. Sectoral reforms

Sector Reforms Challenges

ElectoralSector

Enactment of the electoralsector laws: the Elections Act,the Political Parties Act andthe IEBC Act

Establishment andconstitution of a new electoralmanagement body, the IEBC

Delimitation of electoral(constituency and ward)boundaries guided by theprinciples set out in theconstitution 12

Delinking the Ofce of

Registrar of Political Partiesfrom the IEBC and making it anindependent state ofce

Registration of politicalparties under the Act of 2011

Establishing the PoliticalParties Disputes Tribunal

A weak electoral legal framework is prone to spurious and

whimsical amendments by Parliament to meet prevailing politicalinterests

The IEBC suffers credibility challenges arising from its conductaround the 2013 general election and in the immediate post-election period

Complete failure of the entire ICT infrastructure of the IEBCduring the 2013 general election compromised measures meantto reduce malpractices.

Failure of voter education programmes impede effectiveparticipation of citizens in the electoral process

Political intrigues have immobilised the recruitment of a newand effective registrar of political parties and assistants; thecurrent registrar has been retained in ofce. During her time, shehas been known to be weak and has therefore been favoured bypoliticians who can have their way in matters involving the ofceby skirting the law.

Access toJustice

Enactment of the justicesector laws

Establishment of new courts:Supreme Court, IndustrialCourt, Environment and LandCourt

Vetting of judges andmagistrates serving at thepromulgation date

Appointment of new judicialofcers in a transparentmanner

The Supreme Court is suffering credibility challenges arisingfrom its handling of the presidential election petitions.

Uncertainty around precedence value of some positive decisions

previously made by the High Court being overturned by the Courtof Appeal e.g. the County Commissioners Case and the MumoMatemu Case13

Intrigues around the vetting of judicial ofcers has placed thesuccess of the initiative in doubt

Acrimonious sacking of the then Chief Registrar of the JudiciaryMs. Gladys Shollei and the circumstances surrounding it raisedserious integrity questions on the administration of the JudiciaryFund

12 Article 8913 Mumo Matemu Vs. Trusted Society Of Human Rights Alliance & 5 Others Civil Appeal 290 of 2012 which sought to appeal against a decision of thupheld a petition questioning the constitutionality of the appointment of Mumo Matemu, by the President, as the Chairperson of the Ethics and Anti-C


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3.0 Civil society andimplementation of theConstitution

Civil society organisations (CSOs) played a key roleover decades in the struggle for a new constitution;in its development and in the campaign towards itsadoption at the referendum. CSOs were the drivingforce behind the successful civic education on thethen proposed constitution. It therefore goes withoutsaying that these groups have a major role to play inensuring the successful and genuine implementationof the Constitution. They are the unofcial check

against its sabotage. CSOs have played this role in theConstitutions post-referendum phase. They strove toapply the necessary pressure to ensure adherence tothe provisions of the Constitution and challenged actsby public servants that are contrary to its principlesand provisions. They endeavoured to do this throughdifferent acts by diverse groups as shown below:a) Filing court proceedings to challenge the

constitutionality of executive and legislativeacts that are contrary to the provisions andprinciples of the Constitution. The rst courtaction by CSO groups was the case challengingthe unconstitutional nominations for the ChiefJustice, the Director of Public Prosecutions, theAttorney General and the Controller of Budget.17

In this case, several civil society groups went tocourt to challenge the nominations made by thePresident to these ofces, alleging that they wereunconstitutionally and irregularly made. The courtgave the CSOs temporary stay orders stoppingthe nominees from assuming those ofces, or anyperson from making appointments to the same.As a result of the pressure, the then presidentrecalled the nominations. Several other caseshave been led by CSO groups challenging variousacts by the Executive and Legislature that arecontrary to the Constitution e.g. a court challenge

17 Constitutional Petition No 16 of 2011

to the nomination of Mumo Matemu as chair ofthe Ethics and Anti Corruption Commission, onthe grounds of unsuitability, a court challengeon the implementation of the gender principle;

and a court challenge on the forcible evictions ofsquatters and slum dwellers.

b) Public demonstrations and agitations. Thesewere mainly held to protest acts by the Legislatureagainst the spirit of the Constitution and wherethe Legislature has attempted to subvert theConstitution in pursuing its own interests. Notablewas the CSO-organised public demonstrationagainst a quest by Members of Parliament to raise

their salaries although the function to determinesalaries is not vested in them under the newconstitution.

c) Using mainstream and social media as avenues tochampion the implementation of the Constitution.CSO players have appeared on television andradio to champion the implementation of theConstitution and advocate for constitutionalism.CSO groups also have a robust presence on socialmedia where they have succeeded in championingimplementation of the Constitution and mobilisingpublic opinion in its support. CSO leaders havealso written many inuential opinion pieces indifferent newspapers on matters relating to theConstitution and its effective implementation.

d) Public forums and dialogue on the Constitutionand its implementation. CSO players have beenactive in holding public forums where differentaspects of constitution implementation arediscussed and knowledge on implementationshared. CSOs have provided technical assistanceto state agencies on constitution implementationand governance generally. The devolved units havebeen the major beneciaries of this technicalassistance in terms of capacity enhancement andexposure to the new governance structures.


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4.0 Challenges in implementingthe Constitution

Implementation of the Constitution commenced

against the background of political mobilisation forthe 2013 general election. The then grand coalitiongovernment headed by President Kibaki and PrimeMinister Raila Odinga oversaw the rst phase ofimplementation. This was informed by the governancestructure established under the old constitutionaldispensation, but with a constitutional caveat thatthis was a transitory phase until new elections wereheld under the 2010 Constitution. 18

Implementation is currently undertaken within a newpolitical dispensation and governance structure. Thetask of implementing the new constitution has notbeen a smooth exercise but has been fraught withserious hurdles and attacks mounted by those whostand to lose from the changes brought about under it.In summary, some of the challenges that have impededthe implementation include the following:a) Implementation in the initial phase was

undertaken within the context of a grand

coalition government. Partners were forcedby the agreement that ended the post-electionviolence to coalesce, as opposed to forming acoalition on a willing basis. Divisive coalitionpolitics at times threatened the implementationof the Constitution. This was most pronouncedin regard to appointments of new ofce holders,where, though the Constitution required the twoprincipals to consult, the president in most casesproceeded to unilaterally nominate persons forappointment to ofce. 19

b) An entrenched ethos of impunity and negativeethnicity, and a political culture of personsseeking to preserve the old order. In theinitial phase of implementation, it took time

for bureaucrats and politicians to understandthat a new legal dispensation was in place thatemphasised integrity in leadership and thatthey needed to change their way of governing.A damning demonstration of this culture waswitnessed when President Kibaki unilaterallynominated persons to serve in the ofces of theChief Justice, the Attorney General, the Director ofPublic Prosecutions and the Controller of Budget,without following the laid down procedure in theConstitution.

Resistance from the central government hascontributed to the challenges of rolling outthe structures and apparatus of devolution inaccordance with the relevant devolution laws.The centralists still view devolved units as partof central government, subject to control andmanipulation by the national government. Thishas contributed to a poor devolution roll out, seenthrough the illegitimate deployment of countycommissioners, directors and similar functionariesfrom central government to frustrate the process.In addition, lethargy or failure in the transfer offunctions and the contentious allocation of fundsfor devolved units, causing territorial contestsbetween central and devolved government units,were also factors in delayed roll out.

Negative ethnicity also threatens the properimplementation of the Constitution through ethnicmobilisation, such as when integrity questions,aimed at fullling the provisions of Chapter Six ofthe Constitution and the Leadership and IntegrityAct, are asked about nominees to key positions.

18 Sections 2 and 3, Sixth Schedule of the Constitution19 Nomination of Justice Al Nasir Visram as chief justice, Mr. Kioko Kilukumi as director of public prosecutions, Prof. Githu Muigai as attorney geneas controller of budget, Ms. Amina Masoud as chairperson of the National Police Service Commission were all made unilaterally without consulting wrequired under section 29 of the Sixth Schedule



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This has watered down the quality of legislationaffecting the counties that requires input fromboth Houses. Most affected was the Divisionof Revenue Act 2013. The National Assembly

passed the nal Bill without incorporating theSenates input and the president assented to it.The Supreme Court, in an advisory opinion soughtby the Senate, held that the Senate has a role toplay in the enactment of the Division of RevenueBill and that its input could not be ignored indeveloping this legislation.

g) Lack of knowledge on the Constitution bya majority of the public. The successful

implementation of the Constitution requires aknowledgeable populace that is aware of theirrights and obligations and empowered to enforcethem. Unfortunately a majority of Kenyans are notaware of the provisions of the Constitution andhow they can go about enforcing them.24 CSOshave been conducting civic education efforts,but many Kenyans were not reached by theseefforts due to capacity constraints. The culture ofimpunity thrives in societies where the populationis ignorant.

5.0 Implementation under the newpolitical order

Kenyans went into the rst general election under thenew constitution on 4 March 2013. The election rang intwo changes: a political transition, in that the outgoingpresident was not eligible to contest, having servedhis maximum two terms in ofce, and the complete

transition into the new constitution with regard tothe executive and legislative arms of government.The Constitutions provisions on devolution alsotook effect after the 2013 general elections.

Implementation of the Constitution is currently rollingout within the new governance structures, informedby the new system and associated political dynamics.These political dynamics revolve around controlof counties and nances devolved to the counties.County governments have made spirited calls for areferendum on the increment of sums allocated tothem from the national revenue. Jostling for politicalspace and positioning for the 2017 general electionsis already inuencing the political environment of the

country.

The Jubilee Coalition won the presidency and a majorityof seats in the Senate and the National Assembly,while the Cord Coalition controls a slight majority of24 county governors. Political competition betweenthe coalition partners and the dynamics of managingcoalition politics has affected the approach memberparties take in implementing the Constitution.Party politics and coalition survival, are the mainconsiderations guiding debate and policy, rather thanthe faithful implementation of the Constitution. 25 Thenet effect of this is that the country suffers from weakparliamentary oversight of the Executive.

Rolling out a new parliamentary structure has beenhindered by political differences and superioritycontests between the two Houses. This underminedthe passage and enactment of the Division of RevenueAct 2013, with each House passing its own version ofthe Bill and the president ultimately assenting to theNational Assembly version.

24 http://www.bbc.co.uk/mediaaction/publicationsandpress/research_summary_understanding_accountability_kenya.html: 57% of Kenyans report knowor fair amount about the new constitution. However, less than half (47%) of those claiming some understanding of the new constitution could identiobjectives of devolution (an element of the new constitution around which expectations are especially high) is to ensure equitable sharing of national a 25 A good example is the parliamentary vetting of persons nominated to serve in appointive offices, where the National Assembly passes nominees wiintegrity issues, just because that person is nominated by their political party leader.


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Despite the inception challenges witnessed with thenew governance structure, there are opportunities forpositive implementation of the Constitution with thenew governance system in place. These include:

a) Maturity of all provisions of the Constitution. Thegeneral election of 2013 brought into operationall provisions of the Constitution, including thosethat had been suspended until the rst (post-Constitution) general election. The structure ofthe devolved system envisaged in the Constitutionis now fully in place, the executive structureadvanced is operational, as is the legislativestructure encompassing a Senate, NationalAssembly and the new ofces of Parliament. These

new structures all have a role to play in advancingthe course of constitution implementation.

b) Development of enabling legislation to fullyimplement the Constitution . The Fifth Scheduleto the Constitution sets out an implementationmatrix within which certain laws must be enactedby Parliament to give full effect to the Constitution.The optimum period permissible by law withinwhich those laws have to be enacted is ve yearsfrom the promulgation date. The period remainingfor this will lapse within the current parliamentaryterm. Interventions with the national Parliamentand other institutions must therefore be fasttracked to meet the Constitutions ve-yeardeadline for the enactment and harmonisation oflaws.

c) Implementation to be undertaken withina reformed institutional framework. TheConstitution provides for the establishment ofnew institutions of governance like commissions,and the reforms of others, such as the judiciary,security services, public service and the nancialsector. Institutions tasked with responsibilities

in these areas have undergone some level ofreforms, though with challenges hindering theireffective transformation. Implementation of theConstitution overseen by these institutions will

benet from their ongoing transformation.

6.0 Strategies of implementation

Implementation of the Constitution requiresconcerted efforts by all stakeholders in the governancesphere. They must employ effective strategiesto ensure that implementation is not derailed inthe pursuit of other interests. Possible strategiesinclude:a) Enhance the outreach level of the national civic

education initiative. This initiative was undertakenby the Department of Justice and termed theK-NICE26 initiative. K-NICE continues to carry outcivic education on the Constitution and devolution,reaching people through the internet, television andradio.27 It should also incorporate aspects of votereducation and education on the constitutionalorder, which should cover both the content scope

of the training and the geographical reach of thetarget audience. They should be specic enough tocover particular problematic issues; for examplein disaffected areas such as Mombasa, devolutionhas been articulated as a precursor to secession.

b) Enhance sectoral, institutional and stakeholdercollaboration. This is important amongst thevarious state and non-state actors working ondiverse aspects of constitution implementation.

Implementation cannot be seen as a state-drivenventure only, but as a collective initiative of thepeople of Kenya individually and in organisedgroups providing platforms to engage with stateinstitutions.

26 Kenya Integrated Civic Education27 http://www.knice.go.ke/ and https://www.facebook.com/Kenya.civic


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c) Sustain national dialogue on constitutionalimplementation and citizen awareness of thoseinstitutions tasked with making it happen.Mainstream and social media provide a platform

through which national conversation andvigilance on implementing the Constitution canbe maintained. Strategies should be designedto engage with these means of communication.Responsible institutions must be tasked toproactively provide information and report to thepublic on implementation of the Constitution. Theleadership of both the National Assembly and theSenate needs to proactively arbitrate the disputebetween the two Houses in a spirit of mutual respect

to ensure effective parliamentary functioning inlegislative development and oversight.

d) Develop mechanisms for realising publicparticipation in governance and law-makingprocesses . This will require the design ofregulations and tools that will allow meaningful

public engagement, as well as facilitate andentrench positive, constructive and responsivepublic participation in the governance and lawmaking process.

7.0 Conclusion

There are numerous challenges facing implementationof the Constitution of Kenya, 2010. However, therestill remain abundant opportunities for its properand timely implementation. Joint efforts from notonly Kenyas leadership, but also civil society andthe public can ensure that the gains secured thus

far through implementation of the constitution areconsolidated and that the pending positive legislativeand institutional reforms are put into place in thecoming years.



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taking stock: challenges and prospects of implementing the constitution of kenya, 2010

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