August 2015 marked exactly five years after Kenya got herself a new constitution, oh boy what a half decade it has been? Whereas some things have changed, more things have remained the same, quite in contradiction to the euphoric mood and genuine optimism that characterized Kenya at the spur of that emotional moment on 10th August, 2010, when Kenya promulgated in the new constitution. Outside the borders of Kenya, the Kenyan constitution won critical acclaim, some referred to it as “one of the most progressive constitution”, in the same breadth, critics conveniently forgot that it could be one of the most impractical as well and expensive as well.
But as the times have rolled on, a few things have become clear. The first being that Kenya’s political class does not suffer from the same lack of foresight that afflicts other mortal Kenyan classes. Kenyans could not for example have foreseen how the new devolved structure would turn out to be quite the cash-cow for a devolved political elite and their gangs of cronies, the politicians did not overlook this. The other thing that is clear is that promulgation of the new constitution in 2010 was and is not Kenya’s Magna Carta moment, it did not turn out to be the critical juncture that would have seen the country take up a different trajectory to prosperity seen.
As times have gone on, I have seen experts commentators get their theories in a twist and miss critical issues. See, a constitution is a social contract that lays out how power is distributed in society. In Kenya’s case, the 2010 constitution proximately boundered government. It laid out how the government both at national and local level would exercise the people’s sovereignty. But all the experts have done within the last five years is wax lyrical about the literal value of the constitution, getting into technical arguments about what is and what is not constitutional. Whereas this technical arguments are important, ignoring the deeper philosophical meaning of the constitution is fatal. A constitution is never a constitution for its own sake. A constitution is never effective without institutionalization of a culture of rule of law, which what has happened in Kenya, we have a new constitution for vanity’s sake, sort of walk around with broad shoulders in case anybody asked about countries with new constitutions, and we promptly raise our hands up.
At the very heart of it, a constitution or a social contract is a moral pact between a people and the few upon whose shoulders the responsibility of governing the people is placed. However, there has been very little evidence to show that politicians, leaders and bureaucrats have any regard, nor take this moral responsibility seriously.
As a matter of fact, there has been quite the evidence that the political class is not ready and willing to obey the spirit of the constitution. In the early days of the Jubilee administration, the members of parliament connived to increase their salaries, abhorrently immoral this was given yet there was a constitutional body vested with the mandate to set salaries for public officials. Soon everybody else including the Members of County Assemblies was agitating for more salaries and the Salaries and Remuneration Commission was effectively emasculated. Today the Kenyan legislators both at county earn abhorrent salaries.
Of all the things, the biggest disappointment under the new constitution has been runaway corruption, political impunity and the glaring lack of integrity at various levels of government, Kenyan’s have been unable to keep up with the multiple scandals that spring up every day, and the obvious fiscal burden the constitution imposes. The president, who by the very virtue of the office he holds should be the general in the march towards good governance, mounts only a half-hearted challenge on corruption, the governors, steal, bribe the MCAs and form an unholy congress of theft in devolved units. We Kenyans remain haplessly helpless as virtue is abused all around us.
The annual report of 2013-1014 released by the Ethics and Anti-Corruption Commission (EACC) indicated that a total of 4,006 corruption cases were made. The most notable corruption scandals since 2013 in the central government include the irregular awarding of a tender for designing, supplying, installing and commissioning of command and control system for the National Police Service; procurement irregularities in the tender in concerning the standard gauge railway; alleged irregular procurement of laptops at the Ministry of Education; bribery and abuse of office allegations against officers in the Department of Immigration when processing work permits; irregular procurement of Meridian Medical Centre Limited for provision of outpatient services to NHIF members; and the 1.5 billion procurement of the IFMIS by the Ministry of Devolution.
Notable corruption cases within the county governments include alleged irregularities in the tender for the supply of drugs in Kiambu County; abuse of office by MCAs who awarded themselves construction contracts in Meru County; irregular procurement of the governor’s house in Kilifi County; misappropriation of 19% of funds in Narok County; purchase of second hand laptops for county representatives through single sourcing in Machakos County; irregular purchasing of furniture and other equipment for the speaker’s house in Kisumu County.
We Kenyans have been dazed by the congratulatory messages coming our way on the 2010 constitution, but ultimately our biggest responsibility lies not ensuring that the constitution as a supreme legal document maintains its sanctity, but in ensuring that the moral contract between the political leaders and the ruled majority.