Kenya: Constitution - Just a Piece of Paper?

12 July 2012

Kenya's constitution promises much, but its implementation has proven difficult.

In 2010, Kenyan political leaders rallied together in a historic moment to publicise the country's new constitution, bringing into effect some of Africa's most progressive rights and governance laws. The Kenyan population rejoiced after voting overwhelming in favour of it in a nationwide referendum. The international community called the document a watershed for reform on the continent.

That cloud of euphoria has since settled. Sensing political resistance towards the constitution's implementation, Kenyans are widely voicing their disillusionment, anxiety and anger. In a country with a rich legacy of impunity, analysts say some members of the political elite are actively preventing the realisation of constitutional principles in order to preserve their political ambitions.

"Professional careers may be in jeopardy," Andrews Asa Asamoah, East Africa analyst at the Institute for Security Studies, told Think Africa Press. "If you look at the extent of the stakes involved politically for certain coalitions and alliances, there are individual interests that stand to suffer from the implementation of the constitution."

Passing time

The country is now rapidly approaching presidential and parliamentary elections, slated for March next year. In 2007, Kenya erupted in violence following a disputed presidential result that landed incumbent President Mwai Kibaki another term in office. The chaos claimed more than 1,200 lives and displaced hundreds of thousands. Kenyans and world powers alike have since emphasised the need to shift away from ethnic politics.

With the revival of defunct tribal blocs, however, ethnicity remains central to the political landscape. Lawmakers now appear focused on jockeying for regional supremacy and forging partnerships.

"Political alliances in Kenya tend to be tribal. Now everyone is looking for survival in the next elections," said Bobby Mkangi, an independent legal consultant and one of eleven architects of the constitution. "The electoral climate definitely breeds huge challenges in the implementation process."

The Kenyan constitution includes a series of timelines that mandate legislation passage within specific periods. The implementation of the document is reliant on the enactment of new laws. Parliamentarians have voted to extend those timelines on a number of occasions.

But an understanding of social empowerment is indisputably growing. Following a popular uproar last week, President Kibaki rejected a bill passed by parliament that amended core principles of the constitution's electoral law. Political figures seemingly tried to safeguard their political futures by mandating that elected MPs must hold university degrees and permitting the continuance of party hopping, an epidemic in Kenyan politics.

Just a piece of paper?

Despite attempts at constitutional manipulation such as this, the country boasts a number of critical legislative successes passed in accordance with the constitutional timelines. Through legislation, the government has established essential institutions, such as the Commission for the Implementation of the Constitution, widely praised for its advocacy work.

Among other key areas targeted for reform, the government has also passed bills which scale back police powers and strengthen citizenship status for minority communities.

"There's a lot left to be desired but the process has kicked off in earnest," said Mkangi. "Many people now talk in terms of constitutional rights. Much more will be developed but at least there is a culture of using the constitution for equal rights for us all. That is penetrating our society."

Critics, however, say the legislation passed is not translating effectively into policy. Police abuse, for example, continues to make headlines on a relatively routine basis. In April, for instance, police tear-gassed and forcibly dispersed a political rally in Limuru, central Kenya, which had brought together opponents of the president's allies.

Rights groups claim police committed a laundry list of atrocities during the 2007-08 post-election crisis including murder, forcible displacement and sexual crimes, and many Kenyans say police reform is critical to avoid a relapse of the violence.

"Up to now, there has been complete resistance from those holding the levers of power towards police reform," Paul Muite, a prominent lawyer, organiser of the 'Limuru 2B' gathering, and presidential hopeful, told Think Africa Press. "To some people, the constitution is just a piece of paper...that is the core of the problem. The events in Limuru are evidence of this."

Despite the fact the constitutional Bill of Rights, buttressed by additional legislation, also - in theory - provides full citizenship rights to minority communities such as Kenyan Nubians, many say little has changed. During the late 19th century, British colonialists brought thousands of Nubians to Kenya to build railroads and serve as military conscripts. Since independence, those in the Nubian community have been treated as second-class citizens.

Nubian activists say the government deprives them of land and refuses to issue identification documentation in an effort to politically and economically marginalise the community. And, despite the new constitution two years ago, activists say the status quo remains.

Implementing the constitution

"This is an election year and people will be voting - politicians want to put obstacles in front of you if they don't think you want to vote for them," said Jamaldin Yahya, a 56-year-old retired civil servant and NGO consultant in the sprawling Kibera slum, located on the outskirts of Nairobi. "An ID is a weapon used by the government to cow people and make you ineffective."

Yahya says the constitution gives Nubians a platform to push for change and that genuine implementation would address their concerns. Nubians, such as 67-year-old Nasur Juma Shabani, are no longer optimistic, however. Shabani has been denied identification documentation for 18 years. Without that, he cannot open a bank account, travel outside Nairobi or cast a vote. Despite teaching maths and physics in state secondary schools for decades, he now has to earn a living through informal tutoring.

"At the beginning we were quite confident. As time goes on we are saying things may not be going the right way," said Shabani. "We are asking why there is not implementation."

The implementation process may be simply overwhelmed and time will usher substantive reform. Recent legal rulings show a strengthened judiciary that prioritises constitutional principles. President Kibaki's recent commissioner appointments to Kenya's 47 new counties, a creation in line with political devolution poised to take place in the near future, were ruled unconstitutional for failing to uphold gender quotas, among other violations.

Apprehension is rife among Kenyans. But observers say the implementation process is irrevocably in motion.

"At the moment, with the flow of the process, it's almost impossible for anyone to stop it," said Asamoah. "[Politicians] don't want to be seen in the view of obstructing unity and implementation - the people will not support that."

Brian Dabbs is a journalist based in Nairobi. He has written for the New York Times, The Atlantic, World Politics Review and Al-Masry Al-Youm, among others. Brian covers political and security issues and reports mostly from East Africa and the Middle East.

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