Tuesday, March 6, 2012

Thoughts on Kenya's New Constitution

Map of Kenya

This blog post has been long coming and i am quite glad that I can finally post it!

Kenya has a new constitution! This is something that my ancestors fought for but never lived to see the day that we would have reforms on the old constitution, riddled with problems. Since the euphoria about the constitution has died down, I decided that I would read through the document to see what the key changes were (for me) and that’s what I will focus on here. 

Since time immemorial, Kenyans have wanted to have a constitution that was representative of Kenyan interests, and that ensured that powers did not lie in one person, the President. It is partly because Kenya did not have an all inclusive constitution that the former President, Daniel Arap Moi had so much power. During his reign, key institutions that were meant to protect Kenyans against corruption, human rights abuses, and ensure a separation of powers in the executive, judiciary and legislature were destroyed.

It was with great joy that after the post election violence in 2007 (a very sad part of Kenya’s history) that the grand coalition parties (Raila Odinga and Mwai Kibaki) heightened the importance of having a new constitution before the next elections, now scheduled for 2013 (but still a contentious issue). The entire process of drafting the constitution was highly scrutinized, and there was recognition by a majority of Kenyans (including politicians) that it needed to be as inclusive as possible. In 2010, Kenyans voted, in a referendum for the draft constitution, and 67% of the population accepted what had been drafted. On 27 August 2010, Kenya officially had a new constitution.

While I was in Kenya in December 2011, I noticed from Parliament deliberations that Members of Parliament (over 95% of them will not be eligible for reelection due to the changes in the constitution) have been shredding parts of the constitution, and proposing amendments that would suit their interests. It is a great piece of document and I think it will be critical for Kenyans to fight for it to remain intact.

So what makes this constitution better than the previous one?

The document clearly spells out the powers of the Judiciary, Executive and Legislature as well as the checks and balances that should be put in place to ensure the separation of these powers. I am quite glad that the power to nominate, appoint (without clear scrutiny and due process) judges, for instance, does not lie in the hands of the President like it did previously. I am also quite happy that the Chief Justice has real powers over the Judiciary and that the constitution mandates her/him to fight for the rights/ independence of the Judiciary

Although members of the cabinet are nominated by the President, these nominations have to be approved by the National Assembly. They also have to hold the right educational and experiential qualifications to hold positions in particular Ministries. This is a clear move away from the appointment of Ministers based on patronage and tribalistic affiliations in previous regimes

There has been an introduction of a new House of Parliament, the Senate, which comprise senators from all 47 counties (also new) in the country. In addition, a National Assembly will comprise representatives of constituencies (now called Members of Parliament). Each of the 47 counties will have to elect a woman member of the National Assembly, which guarantees at least 47 women in the National Assembly, and this is a great win for those that have fought for gender equality in the political arena. I am not sure I completely understand the reasoning of having another House given the financial and logistical implications but one will have to wait and see how this will add value to debates, and in the end the policies government and policymakers adopt for the nation

Stemming from the previous point, I quite like that devolution has now been effected in the constitution in that the government will now have two levels, national and counties, and with this comes allocated national budgets but also responsibility for counties to generate revenue. For a very long time, certain areas in the country have been neglected either because their Member of Parliament was not strong enough to lobby for development resources, neglect by national government, or lack of allocated resources from national government for developmental purposes. This is quite an achievement, if you ask me.

These last two, i really love! Kenyans can now enjoy dual citizenship, and the constitution recognises the existence of gender inequalities in the current societal landscapes and seeks to end this

Now comes the implementation! The Kenyan Constitution will remain just that unless Kenyans can defend it, credible watchdog institutions are established/ strengthened as espoused in the document, and people stop bickering and get into the ‘doing’ mode. I have watched/ read in dismay over the last couple of months as the Kenyan Parliamentarians try to shred the document to pieces to amend sections that they, once upon a time fought for inclusion in the Constitution. If we let them continue with this process, we will end up where we started, with Millions gone to the drain, and with human rights being trampled on. 

We are all watchdogs and need to make so much more noise to defend the Constitution! I am ready to make that noise, are you?

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