The constitution of Kenya was promulgated by former President Mwai Kibaki on August 27, 2010. On August 27, 2013 the constitution marked its third anniversary.
It is a dear baby to us and should be celebrated. The baby is growing well but the family has many issues. Despite the issues and few thorns on the road, there is a lot of light at the end of the tunnel.
We have many reasons to celebrate the constitution. I want to divide and isolate the process issues. The referendum process was guided by laws that even created the Interim Independent Electoral Commission to conduct a referendum. We had a very sound process with attendant procedures and time-lines guiding the settling down process.
The referendum returned a 67 per cent Yes vote. This is one of the highest rates in the world on a contested matter.
The constitution is drafted in plain and simple language. English words as much as possible are used in their literal meaning. This is a constitution everybody can read not just the lawyers.
The old constitution was so technical; it used to take three or four lawyers sitting together reading the laws to understand the law. For us to move well with the new constitution we need to read it as much as possible preferably every evening before we sleep. It is such an easy read.
Further in terms of content and substance, the constitution is well structured from the beginning where sovereignty is provided for the people to the section on definitions. If we compare the constitution to a house, it was drawn by a good architect. The rooms dove-tail well and the structure is strong and prepared from underground.
Every person in the home has a room and some visitors too. We cannot remove one room for instance the senate without affecting the house.
For this reason those that are advocating for a referendum to change some pillars are risking our entire house. Some pillars for instance on Parliamentary vs. Presidential system are so central, if you touch them you may as well abandon the house you have been building for many years.
The architecture of the constitution and the consistency in providing for a new rule of law Kenya is admirable. The design thought of every issues and even provided for room to expand. On devolution, the law gives three years for devolution of functions to counties. Before the end of three years there would be no reason to amend. This is a beautiful house both inside and outside, it is a baby we should celebrate with pride.
In terms of content we have even more reasons to celebrate the constitution. The constitution has a preamble making reference to God. The first clause starts by stating sovereignty belongs to the people of Kenya. The power of the people. Power in Kenya belongs to the people to be exercised at two levels, the national government and the county government. Kenya is a multi-party state. Further the people also donate their sovereignty to the Executive, Legislature and the Judiciary.
The constitution provides for the twin principles of separation of powers and checks and balances. In separation of powers each of the three organs should work independently without interference.
In checks and balances, admitting that absolute power corrupts absolutely, each organ is inter-linked with other organs. The Chief Justice is appointed by the President on the recommendation of the Judicial Service Commission but vetted by Parliament. Courts can entertain cases on members of all organs. The President appoints a Cabinet approved by Parliament. Parliament appropriates funds for the Executive and the Judiciary.
It was not the intention of the constitution for anybody to hide away from oversight under the principle of separation of powers. The constitution is heavy on accountability, a national value in Article 10.
How possible is it that JSC was left outside the ambit of checks and balances so that it is an end in itself? The JSC may even remove the Chief Justice seeing it has succeeded in the cases of the deputy CJ and is pushing on to the Chief Registrar. The checks and balances are to be celebrated as they keep everyone on his/her toes
We celebrate in the constitution, the expansive Bill of Rights that includes the economic, social and cultural rights of education, health, food, water, social security and housing.
Once the rights are protected the next frontier is application. We celebrate the recognition and protection of minority and marginalised groups. Women, youth and persons with disability.
A law is required to be passed on how to involve these groups in the next election within five years with a deadline of 2015 decreed by the Supreme Court. We celebrate the Judiciary and all the reforms provided for in the constitution. The constitution provided for the creation of a Supreme Court as the highest court in the land.
A main pillar of the constitution is devolution, the national government and the county government, each distinct but working together as we remain a unitary state. The women celebrate the constitution for the affirmative action seats including the County MPs.
In celebrating the third anniversary of the constitution we need to move steadily on implementation. We will celebrate later with song and dance when the constitution ushers in development, prosperity and peace.
There is good progress on the constitutional implementation especially laws and structures but we need real development work undertaken to measure efficacy and change to Wanjiku.