Having been passed by 67 per cent of Kenyans at the referendum held on August 4, 2010 the popularity of the new law was not in dispute. Even the few Kenyans who had opposed the plebiscite could not help but join in the celebration. It was as if we had just crossed the proverbial Rubicon into a land flowing with good governance and fidelity to the rule of law.
The enthusiasm with which Kenyans treated the passage of the country's fundamental law could largely be attributed to the struggles that had, for unduly long, characterised the fight for good governance. The centralisation of power that the old constitution entrenched had become a source of great distress to the vast majority of Kenyans. With an imperial president who wielded overwhelming powers and could scarcely be faulted, running of the government had been reduced to a one man show to the chagrin of many Kenyans.
Moreover a significant number of Kenyans had paid dearly, some with their lives, in the fight for a new liberal constitution. Good governance and fidelity to the rule of law became the rallying call as gallant sons and daughters of our soil did battle with security forces deployed to quell any opposition to the powers that be. After a long-drawn battle the Kanu government capitulated to the demands of Kenyans and constituted the Constitution of Kenya Review Commission under the stewardship of Prof Yash Pal Ghai. This Commission went round the country collecting and collating the views of Kenyans on matters constitutional.
Most of these views were encapsulated in the “Bomas Draft” which was later on watered down by some powerful forces around the presidency virulently opposed to reforms. These anti-reformists came up with the “Wako Draft” but when they tried to ram it down the throats of Kenyans in a referendum held in 2005, Kenyans overwhelmingly voted against the draft. From bad to worse But with a new constitution in 2010, reputed as one of the most liberal in the world and which was considered a harbinger for sound governance and fidelity to the rule of law, Kenyans had every reason to rejoice and look forward to better days. A cursory look at what has transpired two years down the line, nonetheless, paints a somewhat distressing picture. Apart from the Judiciary which has undergone significant reforms courtesy of the new constitution, the other branches of government have remained largely unchanged.
One might even argue that they have gone from bad to worse. Parliament and the Executive seem to have conspired to dilute the constitution and make the Kenyan dream of constitutionalism a mirage. Take the Leadership and Integrity Act recently passed by Parliament. This is the statute that operationalises chapter six of the constitution on leadership and integrity.
Sick and tired of leadership that gave the crucial issue of integrity short shrift, Kenyans expected Parliament to enact a watertight statute that would ensure that only men and women of integrity were elected and appointed to public office. Contrary to this anticipation the Leadership and Integrity Act makes nonsense of chapter six of the constitution. The statute, as drafted, leaves room for crooks and outlaws to still find their way into public office. It should therefore not strike us as surprising that we have people indicted for crimes against humanity vying for the presidency and deputy presidency respectively. Others are lining up to be voted into office as governors, senators and MPs. Semblance of discipline and decorum By the same token, the Political Parties Act was expected to restore some semblance of discipline and decorum in Kenyan politics. Kenyans looked forward to a law that would consign party hopping and other forms of political malpractices to history.
But keen on securing their own parochial and selfish political interests MPs enacted a law that entertains and even endorses these malpractices. Then came the Retirement Benefits (Deputy President and Designated State Officers) Bill and the Presidential Retirement Benefits Amendment Bill 2013. Had the Retirement Benefits (Deputy President and Designated State Officers) Bill been assented to by President Mwai Kibaki it would have seen the Prime Minister, Vice President, MPs and other designated state officers take home millions of shillings each as retirement benefits. Even though article 230(4) (a) of the constitution vests the responsibility of setting the salaries and benefits of state officers, including the President and MPs, with the Salaries and Remuneration Commission, Parliament went ahead, in total defiance of the constitution, and passed this law without consulting the commission. Retirement Package And as if to demonstrate his own averseness to clear provisions of the law and sanction Parliament’s violation of the constitution, President Kibaki signed the Presidential Retirement Benefits Amendment Bill 2013 into law. He is now guaranteed of a retirement package of Sh25.2 million and other allowances running into millions of shillings monthly.
This is beside a new residence put up at a cost of Sh500 million on a 1,000 acre farm near Mweiga town on the Nyeri-Nyahururu Highway to which President Kibaki will retire. Surprisingly it is not just the country’s leadership that appears keen to flout the law and still get away with it. If what happened during the recent party nominations is anything to go by, it is no exaggeration to conclude that even ordinary Kenyans have no regard for the values espoused by the new constitution. Many consider it a piece of paper that should not stand in anyone's way. Rather than conduct themselves honourably by sorting out their grievances against each other using the channels provided by the law and graciously accepting defeat many resorted to hurling insults at their perceived adversaries and fighting.
In view of the aforegoing, questions are beginning to emerge as to whether Kenyans and their leaders are keen on implementing the constitution and other subsidiary laws. That President Kibaki still signed into law a bill that even the chief legal adviser to the government admitted was not constitutional, bearing in mind that there was no input from the Salaries and Remuneration Commission, is worrying indeed. The message that this gesture sends out is that as long as it suits one, he or she can disregard the law and still get away with it.
In many democracies, the world over, the constitution ranks above all other laws. Kenya is no exception, at least in word. Article 2(4) of the constitution renders invalid any law, including customary law, and conduct that is inconsistent with the constitution to the extent of its inconsistency. Instead of upholding this clear stipulation of the supreme law, Kenyans have been treated to the awful spectre of Parliament legislating laws that are diametrically opposed to the constitution. Their hopes that the President will be audacious enough and say no to these unconstitutional laws have been dashed as he sees nothing wrong with assenting to some of these laws even when the commission charged with the responsibility of overseeing the implementation of the constitution advises otherwise.
Could it be that despite having an admittedly progressive constitution, Kenya is gradually sliding back to the days when the law of the jungle reigned supreme? Is there any hope that the next government will redeem the country from this downward spiral into lawlessness? Only time will tell.
This article was published on January 19,2013
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