A talk to the IFP alumni on 10 9 2011

The Role of Citizens in the Implementation of the Constitution

Speaking to intellectuals, the members of the middle class, is a challenging task. This is because there is evidence that our middle class is perhaps one of the most compromised and detached community in Kenya. Their limbo arises out of the fact that they are people in waiting for appointments to government and other senior positions or are already settled in life and a system of ideas.

But since we got the new constitution, the role of the middle class has become even more apparent than it was when Dr Willy Mutunga, wrote a book that showed the middle class as providing leadership in the reform agenda in Kenya – where he refered to the Civil Society and the Clergy as the epitome of this class.

I will concentrate on two areas: how we came about this constitution and the lessons on the implementation process.

The renegotiation of a new Kenya can be summed up in four broad historical phases:

1. When after independence the government of President Kenyatta changed the constitution to kill ‘self-governance” by the people, by mutilating the provisions to provide for a powerful presidency and the de-facto one party state, many of the reformers in the political field (led by Odinga Oginga) and those in the academia started through parliamentary protests, theatre and nationalist education to refocus the nation on the need for a more inclusive leadership

2. After his ascension to power and the coup that followed, President Moi outlawed multi-party politics and the country was treated to the “KANU ni baba na mama” sloganeering, the citizens organised themselves into cells to discuss how to open the democratic space. Mwakenya was one such outcome of citizens’ mobilisation. In 1985, Rev Timothy Njoya gave the first sermon calling on the need to renegotiate the governorship of Kenya.

3. The late 80’s and early 90’s saw citizens organised around Mageuzi and FORD to pursue liberation of this country. The repeal of section 2A in 1991 was a direct fruit of citizen activism. Then there was the realisation that plurality in politics without changing the rules of engagement was useless as the incumbent could rig themselves to perpetually stay in power. The civil society under the leadership of the KHRC developed a model constitution for Kenya in 1994. The “No Reforms no Elections” movement in 1997 was compromised by the IPPG where leaders sought to benefit themselves as opposed to the whole country

4. The formation of the CRC in 1999 and subsequently the CKRC (that combined both the CRC and the Ufungamano Initiative as Prof Ghai had demanded) in 2000 was the key step in started a national dialogue in Kenya. The key betrayal of the Bomas conference was realised on 16th March 2004 when the AG refused to take the adopted report of the conference for further processing in Parliament. After the acrimony of leadership that prevailed then, the rejection of the Wako draft in Nov 2005 and consequently what happened in 2007/8 was to a large extent inevitable. The Post Election Violence provided us with an opportunity to agree to renegotiate our basic instrument of governance and thus we got a new constitution

After the constitution was promulgated, the key challenge for the nation has been how to implement it. The constitution provides for a location of sovereignty on the people(Preamble and Art 1), has principles and values upon which the new kenya shall be built (Art 10), provides for a mechanism on how it can be interpreted (art 159), has progressive provisions on socio-economic rights (article 43), provides for strengthening of the various arms of government to make them independent and able to check one another and identifies access to justice (Art 22 and Art 48) as key to citizenry enjoying rights and undertaking responsibilities.

The constitution letter and spirit faces many challenges of implementation. Some of the key lessons we learn from other places include:

• The need to strengthen institutions
• we should ensure a independent and impassionate electoral management body
• The judiciary should be independent.
• we should do everything to avoid interference by politicians
• civic education should to be continuous and be issue based
• as a country we need to develop and sustain a consistent national morality (drawn from the values) and use it to measure all aspects of governance
• make all efforts to ensure that the people take ownership of the constitution

Any engagement therefore by citizens, in my view, should be guided by these seven factors.

I must add a note on civic education.

The constitution envisages that the citizens will be expected to “respect, uphold and defend” the constitution (Art 3). For the citizen to be able to do this, all people must be empowered not just with the knowledge on the constitution, but on the actions that are both possible and desirable for them to effectively play this role. Developing a programme that tells people about the constitution is definitely irresponsible at this time and it is not only too little, but also too uninformed by current thinking on the pedagogy of community education.

Thank you.

10 09 2011