Constitutionalism Five Years Down The Line

Promulgation of Kenya’s Constitution 2010, five years ago, marked a new dawn for Kenya. It was a product of years of bloodshed and struggle for reform that saw many detained without trial. The new Constitution came to be recognised as having contained Africa’s most progressive rights and laws. The International Community called it a watershed of reform on the continent.

As the constitutionalist moment comes to an end with closure of key constitutional agencies the national executive continues to minimize its transformative impact. The civic space appears to be shrinking; rights violation is on the rise despite new constitutional gains and the vision enshrined in our constitution is being strangled by tokenistic participation strategies, disrespect for the rule of law and rapidly intensifying conflictual relationships between and among elected representatives at both the National and County Governments. In this context, the constitution has become less of a covenant and more of a football that our leaders are playing games with.  

More than seven months from the establishment of a Taskforce to review the Public Benefits Organisation (PBO) Act 2013, it is difficult to see whether Kenyans got value for their money. The taskforce was established in the spirit of public participation and it was hoped that it would help build consensus on any necessary changes to the PBO Act 2013 already dormant for two years. Presented to the Cabinet Secretary Ann Waiguru on May 21ST 2015, the report was not shared with the Taskforce Members, the Press and 1,943 men and women who presented their views to the taskforce. It is only after intense pressure from the civil society that the NGO Coordinator Bureau Director Fazul Mahamed finally released the report to the public on July 6th 2015 via  twitter. The unfortunate reality is that the report regurgitates without coherency, seemingly random thoughts and ideas many of which are not deserving of legislative attention. The report has made little attempt to forge a clear set of recommendations that could have improved the existing Act. Clearly, the civil society is yet to escape the Government’s tradition of “NGO legislation by ambush”.

On April 2nd 2014, the police started arresting people without identity documents in the Somali dominated suburb of Eastleigh. Mothers, fathers, wives, husbands, sons and daughters were detained without trial at Kasarani Sports Complex beyond the prescribed maximum detention period of 24 hours. Such treatment is nothing new. According to the Human Rights Watch, in 2012, two years after promulgation of the new constitution, the Kenyan government ordered some 100,000 refugees living in urban areas to relocate to camps. This led to a 10-week rampage in Eastleigh during which the police tortured and abused more than 1,000 Somalis and Kenyan Somalis. The colour of one’s skin and hair texture has become the basis of guilt in this war against terrorism despite Kenya adopting one of the most progressive laws.

According to Ibrahim Sharaawe, Eastleigh Somali Business Community Centre, at least 20 Somalis have gone missing in Nairobi in what has come to be known as enforced disappearances. These people have literally disappeared, from their loved ones and their community, when people believed to be state officials grabbed them from the street or from their homes. Relatives positively identified the body of one of the missing Somalis in Murang’a, a county located 85 km from Nairobi County. Three other bodies believed to be amongst the missing 20 lie in a mortuary in Murang’a County. The feeling of insecurity and fear generated by the enforced disappearances is not limited to the close relatives of the missing persons, but also affects the community and society as a whole. Every disappearance violates a range of human rights, enshrined in our constitution, including: right to security and dignity of a person, right not to be subjected to torture or other cruel, inhuman or degrading treatment or punishment, right to humane conditions of detention, right to a fair trial, right to a family life and right to life. While some Kenyans believe that enforced disappearances are a sure way to fight terrorism, it is a crime under both international and national law. Lets not forget the last decades saw a similar approach used to repress political opponents. Victims of enforced disappearances who escape illegal detention and death and are eventually released are left with permanent physical and psychological scars.

It cannot be left unstated that we have made a number of constitutional gains with the new Constitution 2010. With Devolution there have been great improvement in service delivery in a number of counties across the country. This is despite allegations of greed and corruption and a national government that that has been accused to frustrating county governments. Devolution has emerged as the hallmark of the Constitution, protecting Kenyans rights to equitable distribution of resources. Citizen’s demand for accountability is louder now than ever before as Kenyans are more aware that they can hold institutions accountable. It is also important to note that five years on, there have been no amendments to the Constitution. This goes to show that Kenya has a sound document, a reference point to Kenyans. As we mark the fifth anniversary of the Constitution of Kenya 2010 we need to embrace the basic principles and values enshrined in it.