Local and international media covering just concluded general elections at Uhuru Park, Nairobi. Photo/Billy Mutai

Dr. Erick Komolo

Kenya’s recent political and institutional history is replete with incidences of legal and institutional reforms in pursuit of somewhat elusive national unity. After over two decades of endless political agitation intermittently characterised by ethnic tensions and institutionalised state-sponsored violence, the country eventually promulgated a new constitution and, with it, hopes for a new governance order.

At the core of it, the 2010 constitution was designed to address several underlying challenges that the country had faced over the years, and that were perceived as trigger points for incessant political polarisation and poor governance that often manifested in form of political intolerance, rampant public sector corruption and negative ethnicity.

First, it radically transformed the then existing structure of heavily-centralised Executive presided over by a very powerful presidency by introducing a hybrid version of federalism. By introducing 47 semi-autonomous devolved units or counties, the new constitutional order essentially dismantled the then powerful decentralised provincial system that was dominated by powerful Provincial Commissioners, District Commissioners, District Officers and Chiefs who were only directly answerable to the President and were often whimsically reshuffled to maintain control and achieve political ends of the moment. By contrast, the new County Governors are directly elected and are designed, at least theoretically, to be only answerable to local County Assemblies and, of course, their respective voting public.

Second, the 2010 constitutional order also considerably addressed perennial political inclusion concerns in terms of skewered State development priorities by introducing special financial and affirmative action funds. Under Article 203(2), for instance, it introduced compulsory allocation of at least 15 per cent of audited national revenue equitably to county governments thereby limiting prospects of their marginalisation and guaranteeing a level of realisation of critical objectives of devolution including dispersal of state power. In addition, it introduced affirmative action fund (equalisation fund) under article 204 capped at 0.5 per cent of national revenue to be equitably deployed in development of historically marginalised areas of the country including semi-arid coastal, north eastern and upper rift regions.

Until 1995, Kenya had never had a female member of the National Cabinet and only a handful had from time to time been discretionally appointed as Assistant Ministers in over 33 years of political independence. Thus, third, the new constitutional order introduced mandatory affirmative action in all arms of government in two critical ways. First, it decrees a ‘not-more-than-two-thirds’ gender policy in composition of National and County Executives, the Judiciary and Parliament. In other words, no gender should exceed two thirds in the Cabinet, amongst Judges and, theoretically, in Parliament. It is worth noting that in the case of Parliament or the National Assembly, no mechanism has of yet been conclusively agreed upon towards realisation of this threshold. Second, it creates special electoral and nomination seats for women thereby limiting prospects of negative male competition that had historically chauvinistically excluded women from ascending to political power. For instance, in the National Assembly, it creates 47 special Woman Representative Seats in which only women candidates compete whilst in the Senate and County Assemblies, special topping-up nomination seats are created to ensure at least a third of their membership is always women.

To engender checks and balances that had been gradually eroded from the 1963 independence constitution in favour of a powerful presidency or Executive, the 2010 constitutional order introduced a fourth governance paradigm inform of independent Constitutional Commissions and Independent Offices. Overall, constitutional commissions and Independent Offices (also called, ‘Chapter XV institutions) have been designed to remain insulated from hitherto day-to-day political interference by guaranteeing their operational, policy and financial independence including preserving security of tenure and stakeholder representation in their composition. Importantly, their establishment was designed to cover perennially vulnerable sectors like the judiciary, human rights, management of elections, public service, parliament, public prosecutions and public sector audit from Executive overreach or interference. Some of the Commissions and Independent Offices created in this regard include the Judicial Service Commission, the Independent Elections and Boundaries Commission, the Public Service Commission, the Parliamentary Service Commission, the Office of the Director of Public Prosecutions and the Office of the Auditor General.

Finally, the 2010 constitutional order also for the first time introduced compulsory ethical test and standards to be observed in public service inform of an exclusive chapter dedicated to leadership and integrity. Invariably lauded as a first in Africa, the constitution’s Chapter Six on Leadership and Integrity enshrines mandatory national values such as honesty, accountability, avoidance of conflict of interests and exercise of administrative fairness amongst others.

With this paradigm shift in the country’s constitutional architecture towards rule of law generally, it was logically expected that underlying historical causes of divisions and ethnic conflicts in the country would be surmounted and that the country would eventually be a model rule-based democracy in the East African region. For instance, management of elections was expected to be not only transparent but also substantially inclusive and participatory. Besides, national cohesion characterised by socio-economic and political inclusion was expected to be gradually and sustainably realised. Eventually, with entrenchment of clear national values and principles in the constitution, it was expected that impartiality in traditionally conflicted civil and public service will be achieved.

The post 2010 constitutional order has thus far witnessed two bitterly contested and divisive general elections whose eventual outcomes were only settled by the Supreme Court. In the 2013 elections, for example, despite upholding election results, the Supreme Court identified failures on the part of the Independent Elections and Boundary Commission (IEBC). In fact, the Supreme Court went to the extent of recommending further investigations and enforcement of criminal culpability. In the 2017 elections, the Supreme Court identified similar systemic failures and inconsistencies in results transmission system that significantly compromised outcome of the presidential elections and proceeded to nullify the entire process, a first in Africa.

The fallout from nullification of 2017 presidential elections results and hostility towards the ensuing fresh elections conducted in November 2017 has once again drawn spotlight on apparent missed opportunities under the 2010 constitutional order. Perhaps three incidences succinctly highlight this conundrum.  First, the disintegration of the IEBC which has so far witnessed controversial resignation of more than a half of its commissioners has raised legitimate questions about conflict of interests and State-capture within the commission specifically and ‘Chapter XV’ institutions generally. Second, the heightened levels of police brutality especially surrounding management of elections and in furtherance of protection of elite interests generally brings into direct question commitment to national values and principles like honesty and fairness under the Constitution’s Chapter VI on Leadership and Integrity. And finally, the continued skewered public appointments and disregard for affirmative action especially in senior public appointments brings to question the level of commitment to equity and administrative fairness as incontrovertible underpinning factors that informed the generation-long quest for reform struggle that itself eventually birthed the 2010 constitutional order.

Building Bridges Initiative

The above challenges in effecting the original transformative mission of the 2010 constitutional order has raised valid questions as to conundrum it put Kenya into, especially looked at with the lenses of successive violent electoral seasons. Despite many positive steps registered under the new constitutional order particularly entrenchment of devolution as a new form of governance in Kenya, it continues to encounter considerable political resistance and attempts to recreate authoritarianism that existed under the old order. For example, the government has severally abused its parliamentary majority to pass oppressive legislations attacking independence of the constitutional commissions like IEBC by, for example, redefining the powers of the Chairperson and its Commissioners to declare presidential elections results. In addition, direct attacks against the judiciary by the President and Cabinet Ministers have been sustained including attempts to reduce its budget that can be directly traced to dissatisfaction with Supreme Court’s nullification of presidential election results in 2017.  Finally, powers of Governors in execution of devolved functions like management of health and housing sectors continue to experience policy interference from the national government and are sometimes arguably deliberately underfunded. Although these legislative and administrative overreach against the new constitutional order in the country have generally been overturned by the courts, they arguably demonstrate reluctance by the government and the ruling elite to accept a more checks-and-balances system that the 2010 constitution entrenched. In addition, some may argue that the consistent attacks against the constitution and rule of law is a manifestation that the presidential system of national government that the Constitution 2010 retained is ill-suited for a multi-ethnic society such as Kenya in which perceptions of exclusion in allocation of national power are endemic and potentially violent. Thus, in this conundrum, questions are now being asked whether Kenya is ripe for yet another phase of constitutional reforms ahead of the 2022 general elections.

Needless to overemphasize, attempts at another phase of constitutional reforms ought to necessarily address itself to underlying causes of violence during every electoral cycle. For example, it should  interrogate objectively why ethnicity continues to form a discernible destructive organising force in the country’s elections, and its medium to long term implications on Kenya’s stated desire for political inclusion and equal opportunity for all citizens.  It should also relook at structural implementation of devolution especially separation of powers between county and national governments, and clarity in devolved functions. Moreover, it ought to reinforce rule of law by further guaranteeing independence of the judiciary and emphasising its centrality in dispute resolution and in engendering checks and balances. Finally, it ought to also further protect constitutional commissions and independent offices by sealing loopholes such as political and budgetary interference that the electoral agency, IEBC, has been subjected to during the 2017 elections cycle.  In the case of the IEBC, for example, clarity ought to be achieved in terms of the role of the commissioners vis-à-vis the secretariat in light of perennial allegations of the latter undermining the former. 

Perhaps the best indication that these issues are under consideration is the ‘Building Bridges Initiative’ recently announced by President Kenyatta and opposition chief, Raila Odinga. As part of their joint efforts to reconcile the country, the duo declared their commitment to national dialogue and announced a joint team of 14 advisors drawn largely from the religious, political and academic fraternity to shepherd the Initiative. Importantly, they declared their commitment to reverse negative ethnicity, and historical political and governance challenges including fighting corruption, engendering equity in national leadership and recommitting to devolution.

Whilst it is premature to conclude on the nature and depth of constitutional reforms , if any, that the Building Bridges Initiative might eventually precipitate, it is safe to suggest that a national referendum will likely be conducted before the 2022 general elections for a number of reasons. First, engendering equity in a volatile multi-ethnic society like Kenya often gravitates around perceptions of inclusion in the national Executive, which under the 2010 constitutional order can only comprise of the President, Deputy President and 22 Cabinet Members.  Thus, to accommodate the diverse ethnic and political interests that defines Kenya’s current body politic, it is plausible to argue that this will need to be restructured vide a national referendum.  For example,  suggestions are already being put forward in  national political conversation that the country may finally be ready to introduce parliamentary system of government to shift focus from individual ethnic blocks and more to political parties or coalitions akin to experiences of South Africa and Germany. Second, the apparent recommitment to devolution in the Building Bridges Initiative necessarily raises questions of the challenges counties have faced especially during the first phase of devolution from 2013 – 2017. Typically, the challenges have always revolved around gross under funding or budgetary deficits, weakening of checks and balances, and incessant turf-protection conflicts with national government institutions due to their haphazard implementation of devolution or conflicts over shared functions. Taking the above two aspects (restructuring of the national executive/shifting to parliamentary system and restructuring devolution), for example, as starting point of themselves invite amendments to the constitution under Article 255. In particular, Article 255 of the Constitution 2010 decrees that any proposed amendments affecting the structure of the Executive and devolution must be subjected to a popular national referendum. However, such a referendum will undoubtedly require considerable political goodwill to be sustained.

Whilst it is plausible to argue that the political rapprochement between President Kenyatta and Mr. Odinga provides critical fodder to sustain such a goodwill leading to any eventual referendum, the country’s broader body-politic tend to be fragmented and personality-centred. That means that it is truly difficult to predict those genuinely supporting the calls for referendum and proposed constitutional amendments at the moment. Based on experiences of 2005 and 2010 referenda, it is arguable that the eventual details of the any proposed amendments may also lead to paralysing political fallout especially where elite interests and personal ambitions of leading political players are threatened.

Dr. Komolo is visiting Fellow, Harvard Law School 

Selected Bibliography

  1. Constitution of Kenya 2010 (http://www.kenyalaw.org/lex/actview.xql?actid=Const2010)
  2. Supreme Court Petition No. 5 of 2013 Raila Odinga –vs- IEBC & 3 Others (http://kenyalaw.org/caselaw/cases/view/87380/)
  3. Supreme Court Petition No. 1 of 2017 Raila Odinga & Kalonzo Musyoka –vs- IEBC & 3 Others (http://kenyalaw.org/caselaw/cases/view/140420/)
  4. Blow as three IEBC Commissioners Quit , Business Daily, April 2018 https://www.businessdailyafrica.com/news/Blow-as-three-IEBC-commissioners-quit/539546-4395796-5geuxr/index.html (accessed May 2018)
  5. More MPs support Raila’s push for referendum https://www.standardmedia.co.ke/article/2001279488/more-mps-support-raila-s-push-for-referendum  (accessed May 2018)
  6. DP Ruto Opposes Referendum https://www.youtube.com/watch?v=NOUCIGwktlI (accessed May 2018)
  7. Uhuru and Raila unveil 14-member dialogue team https://citizentv.co.ke/news/uhuru-and-raila-unveil-14-member-dialogue-team-198612/ (Accessed May 2018)
Constitutional conundrum and political crisis in Kenya post 2017 elections