Kenya has retained the text of the 2010 Constitution 16 years after its promulgation, but the country's implementation of the document has fallen short of the aspirations that drove its adoption, Katiba Institute Litigation Counsel Sumayyah Mokku has said.
Speaking during a Radio Generation interview on Monday, Mokku described the continued existence of the Constitution without changes to its original text as a significant achievement.
Kenya's current Constitution was approved in a referendum held on August 4, 2010, before being promulgated on August 27, 2010.
Official referendum results showed that 6,092,593 voters supported the proposed Constitution, while 2,795,059 voted against it.
Of the 8,887,652 valid votes cast, the document received 68.55% support, with turnout standing at 72.18% from 12,616,627 registered voters.
The Constitution replaced the 1969 Constitution and introduced a significantly different governance structure, including a devolved system comprising 47 counties and a bicameral Parliament made up of the National Assembly and Senate. Before 2010, Kenya was administratively organised into eight provinces.
“For me, every single year when we mark August 27, I would always like to start on a positive note. The positive is that the text of the Constitution, as we promulgated it, remains the same, and that in itself is an achievement. I say this because we have fought all around the Constitution, and every regime that comes into office always tests it. This regime is no exception, so technically, we are starting off on a positive note,” Mokku said.
However, Mokku maintained that preserving the constitutional text was different from fulfilling its promises.
“We still have the Constitution as it is, but I would say negative in the sense of the implementation and the various implementation aspects of the Constitution. We have to find out just how much we have digressed from the values and aspirations that the people of Kenya had for themselves when they gave themselves this document,” she said.
The 2010 Constitution established devolution with the aim of promoting democratic and accountable government, public participation, equitable sharing of resources and greater access to services across the country. Article 174 sets out these objectives, while Article 6 establishes the 47 counties as Kenya's devolved units.
The litigation counsel at Katiba Institute highlighted that the magnitude of the transition required sustained institutional guidance and could not realistically have been completed within a single five-year electoral cycle.
“The novelty of it is what I am speaking to. That novelty is not something that was going to bring about any normalisation within a period of five years. That is not possible within one electoral cycle,” she said.
“Something as enormous and phenomenal as the Constitution, I do not think that five years was going to be adequate, not just for the Commission for the Implementation of the Constitution, but the transitional authority as well.”
She compared the implementation process to raising a child, arguing that the work of institutions tasked with guiding the new constitutional order should not have ended immediately after the document came into force.
“Even with the bearing of a child, the midwife's job isn't really complete upon the birth of the child. Again, that's when the real work begins, because this child now has to crawl, has to stand, has to walk. Surely, that is the burden that we somehow skipped.”
Mokku acknowledged that the first Parliament under the new Constitution faced unprecedented responsibilities, including operating within a bicameral legislature and implementing new constitutional functions.
The National Assembly was constituted with 290 elected constituency MPs, 47 county women representatives and 12 nominated members representing special interests, while the Senate was created to represent and protect the interests of the 47 counties.
However, she questioned whether later Parliaments could continue relying on the challenges of transition to explain failures in implementation.
“For the people who constituted the first House since the promulgation of the Constitution, you could say that they were faced with a unique challenge. But frankly speaking, can we really say the same thing for those who are sitting in the House now and any House subsequent to the first House?” she asked.
She argued that Parliament had little incentive to enact reforms that could weaken the political security of elected leaders.