BY NDUNG’U WAINAINA
International Center for Policy and Conflict (ICPC) has carefully studied, analyzed and evaluated the new call for referendum against the recommendations of two critical reports; the Report of the Working Group on Socio-economic Audit of the Constitution of Kenya, 2010 (group formed by National Assembly) and the Report of the Taskforce on Devolved Government, 2012.
These Reports have arrived at the following conclusions thus:
That the Constitution of Kenya 2010 provisions, combined, address the root causes of violence and the perennial tensions that the country that Kenya grapples with. It provides opportunities for better development and realization of aspirations of the people – a government based on the essential values of human rights, equality, freedom, democracy, social justice and the rule of law. Further, it provides an opportunity to address the challenge of inequities in development, poor governance, and service delivery.
That the 2010 Constitution is people oriented; Its objectives are set out clearly in preamble and Chapter One. It reminds state institutions and politicians always that their power comes from the people. Politicians don’t have very clear sense of how Constitution systems work. The 2010 Constitution of Kenya is largely as a result of the 2005 Bomas Constitution of Kenya Review Commission (CKRC) draft, save for a few changes. How do we go to referendum yet we have failed to implement the Constitution? Politicians want to destroy it the Jomo Kenyatta did to the 1963 Constitution.
That the Constitution of Kenya 2010 is unequivocally clear and meticulously articulates the principles of inclusion, equality, diversity, non-discrimination and participation. However, there is no solid law both at national and county levels to enforce these principles in practice.
That the huge budget deficit, massive public debt and unjustified, poorly unreasoned public spending have grossly increased. However this is not attributable to implementation of the Constitution of Kenya 2010. It is the policy choices by both the Executive and the Legislature that are problematic and, therefore, one cannot blame the Constitution as an expensive venture. It is our finding that wastage and mismanagement of public finance is at the heart of the problem.
That, the people of Kenya, in the 2010 referendum dismantled the imperial presidency with its attendants. Unfortunately, the failure by Executive to fully devolve functions as laid out in the Constitution, retention of duplicate roles extensively through failure to restructure and rationalize national government ministries, departments and agencies to accord with and respect devolution, both national and county governments ‘wastage and inefficiencies as well as unmitigated conspicuous consumption coupled with rampant corruption especially by national government is the cause for bloated public expenditure and not the 2010 constitutional dispensation
That the duplication of governance and resources by both the county and national government should be eliminated through improved coordination of services. The national government should only be represented in counties by technical officers and the heads of the technical units working and coordinating with their equivalents in the county departments. National government functions should be carried out through county administration. County governments, constitutionally, are assigned county planning and development including statistics, land survey and mapping, boundaries and fencing, housing, electricity and gas reticulation, energy regulation, county transport, agriculture, health services, trade development and regulation, which are the key sectors that affect majority of the Kenyan people.
That the Constitution is delivering better services through devolution. Devolution has provided services that have never been available to residents since independence in 1963. Kenyans have access to relatively better services than in the past. Further, the marginalised areas have resources for their own development as other parts of the country. Therefore, devolution is slowly achieving the promise of delivering equitable services in all corners of the
country; it is addressing the challenges of imbalances in development in an unprecedented manner.
The devolved system of governance requires restructuring the central government infrastructure bureaucratic set up and devolving the administrative, political, security and fiscal authority to the county governance system. It is therefore premature to talk of Constitution change and referendum before there is well-structured national dialogue on what has been implemented and what is remaining to be implemented of the Constitution of Kenya 2010. The Constitution is for national posterity not for managing political succession.
That the State officers and institutions are not strictly abiding by the various provisions of the Constitution. Both the county governments and the National Government have not pursued policies to promote national cohesion and unity; they have not been effective in ensuring that recruitment to public offices reflects regional and ethnic diversity of the country and the county, with regard to the county governments.
That the Constitution has various levels of representation of the people, however, it is our conclusion, comparing with other jurisdictions and the size of Kenya’s economy, Kenyans are over-represented. Therefore, Kenya should reduce the number of MPs and the MCAs by adopting mixed member proportional representation system without compromising national values on diversity, protection of vulnerable groups, and the marginalised, and the equality principle regarding gender.
That the Constitution provides that security agencies exercise their powers and functions in line with the Constitution and that they are subject to the authority of the Constitution and Parliament. Unfortunately this fundamental shift has not been implemented, respected and upheld. Further the National Government has not set national security objectives and policies to implement them in accordance with the broader constitutional objectives and purposes.
That the constitution provides for separation of powers and independence of different arms and institutions of state as well as Commissions such as Judiciary, Legislature, security organs, Office Director of Public Prosecutions amongst others. However there is still massive structural, operational and funding interference by the Executive specifically in the roles of other arms of government and the various bodies and commissions created by the Constitution, making them weak, dysfunctional and compromised.
That the while there could be few issues to correct in the Constitution of Kenya 2010, the calls for referendum and constitutional amendment are repugnantly ill-informed, misguided and meant to obscure the failure to implement the letter and spirit of the Constitution of Kenya 2010. Further, it will not be shocking if the opaque and secretive Building Bridges Initiative, which has no legal basis, is already working on proposals to amend the Constitution under the pretext of formulating national cohesion and integration policy.
That it will be catastrophic to allow politicians, who have failed to implement the Constitution but only have very sighted vision based on next election and political convenience to lead the dialogue on Constitution amendments. Any debate on Constitution amendment must be divorced from the 2022 political succession. It must be inclusive, participatory and people driven. The Country cannot afford a costly political affair that is not informed by coherent reasons and justification other than the desire by a few to have public offices created for them.
