The Constitution has never been the Problem in Kenya

To review or not to review….  

                                                

This question regarding the Kenyan constitution has come into the public debate.

It appears like the tagline “Not yet Uhuru” remains with us. Of course there is

nothing wrong with intent to review the constitution. We can make better arrangements any time.

We can make better laws anytime. Humanity must make its tools better with passage of time.

Definitely the constitution of 2010 is now ripe for putting up there against its achievements

and to evaluate successes and failures of it. 

Most constitutional reviews begin at the intersection of law and politics. 

As we have seen so far, politicians are at the forefront calling for an expanded 

executive as well as creating other additional structures within the constitution.

Considering that the document itself took many years to complete,

 I reasonable expect that quite an amount of time will go by before

 any changes are accepted and implemented.

It is a good sign that some members of the clergy have voiced their support as well,

therefore the politicians are not completely alone in this endeavour. The only danger

remains that of making sure that the self interests of politicians do not flood the process

and maim or adulterate it.

My primary concern however is the actual premise on which the calls for review were made.

 Some senior politicians and clergy appear convinced that the review to expand the executive

 will solve the Kenyan problem (bad governance).I find this kind of thinking completely

 off the mark. Our politicians have never understood the Kenyan problem. Perhaps

 this weakness stems from the fact that they themselves constitute a huge chunk of that

 problem. It is human nature to think of a problem as coming from external sources rather 

than oneself. It is time our political leaders looked in the mirror.

There are some who oppose the proposal for amendments on the basis that expanding

 the executive will grow the already heavy burden of public wage bill. This again is not
quite the problem of the Kenyan Nation.The big wage bill is not as a result of many positions
created by the katiba 2010. It is a function of greed. In late 90’s I used to see District
Commissioners who represented the President in the forty seven districts, (today's counties)
driven around in land rovers. Today I see members of the county assemblies, some of whom
 are poorly educated, move around in sophisticated cars, and even travel abroad more than
 twice a year. Many governors are in the lead of this extravagance in the counties. Constitutional
weaknesses that are being discussed are by a large extent imaginary or created. They can
therefore be fixed without touching the supreme laws of Kenya.

I think it is important to single out the problem and deal with it.Worse still is the idea of reducing
the number of counties. Counties have recorded bad news purely because of mismanagement.
I believe that small units are easier to manage than big ones. If corruption in counties as they
are now cannot be nailed, I do not see how that can be done if several such units are combined.
 Again, perhaps there is a point in wanting to have bigger units but such an argument cannot
be made on the pretext that bad governance at counties is happening because the units are small
or many. Corporates all over the world organize their operations around small units to achieve
overall efficiency.  There is a manner in which I see reluctance in achieving top efficiency in public
 affairs. There are clear models which can be applied readily to bolster effective service delivery
at counties without any changes.

 I am beginning to see divisions between those who support and those who oppose.

The dice has been cast already.  This kind of thing could be ominous for a worthwhile
process. A referendum is basically driven by politics and fanning of euphoria may come
to play. Once this happens, the process will get very slippery. Sincerity would demand
 that we look at the institutions of governance that were created by Katiba 2010 and
 assess their successes and failures. It is my considered view that a multiple of commissions
have miserably failed. These commissions were created to insulate public interest from political
or any other interests.

Looking at National land commission you see a house with a high ceiling and you really cannot
tell whether it is a storey building or a bungalow. To start with, you see a curious line in which
the chairman had to come from a region most affected by land injustices. In a political sense,
this is intended for cosmetic appeasement of the most affected. On the onset there was a tussle
between the commission and the ministry of lands.The tussle was eventually won by the ministry.
This essentially was a step backwards in the quest of removing executive’s hold on the land
 management in the country. Communities which practiced communal land ownership suffered
 a great deal during colonial days and even after independence not much reprieve was attained
for such communities. Their lands were easy to capture and allocate to “government people”
because no specific persons could lay direct claim on them. Those who opposed such moves
were victimized as enemies of state and suffered personally. The constitution 2010 intended to
 right some of these injustices by creating an independent body to guard against such moves
and cushion ordinary citizens against discriminatory practices by people who may have authority.
NLC has not achieved this goal.  Their failure is not because the commission is inappropriately
structured. Most likely there is a high degree of interference in its activities and the concept
 of independence doesn’t appear as abundant as should be.

Citizens witness the promulgation of the Constitution 2010

The Salaries and remuneration commission was created to set and review remuneration
and benefits of all state officers as well as advice national and county governments on
 remuneration of all public officers.For many years Kenyans watched helplessness as
members of parliament awarded themselves hefty pay packages and other luxuries at
the expense of poor taxpayers. It was normal as it is today for public and state officers
to hold seminars in expensive hotels to deliberate issues which ideally should be handled

in their offices. All these expenses are always footed by the tax payer. Governors across
 the counties have continued to hire human resources across the country and swelling the
 wage bill at that level. The fact that these practices abide to date shows that this commission
 hasn’t delivered the core of its mandate which was to tame the public wage bill. Again this
failure has nothing  to do with the structure of the constitution.

Another critical institution that has failed a great deal is one that is central to Kenya’s democracy.

Indipendent Electoral and Boundaries Commission-IEBC. Kenya has had two not so good elections

in the year 2017. The first one was annulled by the Supreme Court while the second was upheld,

albeit amid accusations of duress and uncertainties of prolonged political crisis. Commissioners

alluded to internal misunderstandings which led to some of them resigning.

Because of the big money involved in electioneering, there has been so much of interference

with the independence of the commission. Bad elections has led to civil strife in many countries

around the world. A compromised electoral body can never be good for any democracy. Mainly in

African states, incumbents weaken such a body in order to perpetuate their stay in power by

false electoral wins. Upon such a false success they proceed to populate critical institutions

with people who are considered friendly to such a regime. Within no time, other institutions

get weakened as well in the same fashion. Other institutions in this case may include:

Judiciary, Parliament, the police, public prosecution, office of auditor general among others.

For these reasons, I assert that the problem with Kenya has nothing to do with any structure 

of the constitution. The problem is in the people. For how will creating an office of the
Prime Minister slay corruption? How will a three tier of government bring cohesion or inclusivity?

Have we not changed IEBC commissioners several times and achieved no meaningful outcome?

The review will not happen any time soon.

Even if it does, it will not solve the problems purported.