Nairobi — 14 years of pain and pleasure.
Fourteen years ago, Kenya adopted its current constitution. The constitution has vastly reorganised and fragmented governmental power and entrenched limits on its exercise. The culmination of a quarter-century of struggle, and forged in the aftermath of the 2008 post-election violence, the document has steered the country through three disputed presidential elections (including a historic nullification in 2017) and empowered the citizenry to make unprecedented demands on their rulers, as demonstrated in the recent Gen Z protests.
It has not been an easy nor straightforward journey. And belief in the power of the document to effect lasting change has ebbed and flowed. Just four years ago, I wrote that the promised Second Republic had failed to materialise: "While the constitution sought to restart the project of decolonisation aborted at independence, the job of implementing it has unfortunately been left to an elite with the same colonial patterns of thought that produced the first republic."
However, just as was the case in 2017 following the annulment of the presidential election, the turbulence of the last two years has paradoxically served to renew faith in the constitution. The constitution, it seems, works in mysterious ways.
The election of William Ruto as the country's fifth president in 2022, for example, hardly seemed like a win for the document. His candidacy - his career having been dogged by scandal and violence from its very inception - defied the constitution's leadership and integrity requirements. Still, despite the efforts of his erstwhile boss, President Uhuru Kenyatta, whom he had loyally served as deputy for the previous nine years, the election that brought him to power was the most credible and transparent Kenya has had. In a country where past presidents tended to get their way, it was a sign of how far we had travelled.
It is a lesson Ruto has been painfully learning. His first term in office has been plagued by pesky Kenyans who at every turn have used the constitution to challenge his authority and dictates. Much of the discontent has focused on his economic policies, another sign of how Kenya has changed. Gone are the days when the minutiae of national budget-making was the province of a few, and the government could afford to ignore complaints about its tax proposals. Today, the intricacies of the budgeting cycle are regularly debated in the mainstream press and it has become fashionable for knowledgeable professionals to organise discussions on X to educate fellow Kenyans on matters of macro-finance.
Once treated as tokenistic exercises, constitutional requirements for public participation in policymaking have been given force by a reinvigorated judiciary backed by an engaged public. It is a far throw from the dismissive declaration by 1990s dictator, Daniel Arap Moi that "Wanjiku" - the feminine personification of the ordinary Kenyan - had little interest in constitutions. At the time, Moi was trying to dent the push to replace the independence constitution, which had been negotiated in the UK and bequeathed to nominally independent Kenya in December 1963 via an act of the UK parliament and subsequently amended to recreate the autocratic colonial state - with a homegrown one representing Wanjiku's ideas and aspirations.
Moi failed and it is somewhat ironic that today Wanjiku is using that homegrown constitution in all the ways that would have horrified the autocrat - to insert herself into matters once considered the preserve of her betters in the serikali (government) that had been transformed into siri kali (top secret). The recent Gen Z protests, which, for the first time in the country's history, forced the president to abandon the Finance Act - the legal authorisation to raise new taxes - after he had forced it through parliament, demonstrated the potential impact of Wanjiku's unwelcome gatecrashing.
So where do we go from here?
If there's one thing history has taught Kenyans, it is that progress is rarely linear. Already Ruto is reneging on commitments he had made to clean up his cabinet, and attempting to reintroduce the abandoned tax measures through the back door. He has also tried to take the air out of the Gen Z protest movement by presenting, very like Moi, the country's issues as being properly addressed via a coming together of political elites in a "broad-based" government that includes the opposition.
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However, the genie is not going back inside the bottle. Few are fooled by Ruto's antics and, having had a taste of power, the youth are unlikely to accept being once again sidelined in decisions about their future. They continue to use novel ways and technology to afflict and embarrass him. A prominent activist has, for example, undertaken a tour of projects ostentatiously launched by the president to great fanfare, revealing many to be fictitious.
Kenyans will undoubtedly continue to explore new ways of exercising the rights and freedoms the constitution protects. That much of it is still yet to be implemented suggests that the future will be full of exciting opportunities for Kenyans to remake their destiny, and more nasty surprises for their rulers. So here's to the 2010 constitution and to the pleasure and pain it makes possible.
