Kenyans Have Won; Now Hard Work Begins...

By Miguna Miguna

August 5, 2010

The popular verdict is in. The overwhelming majority of Kenyans have spoken. The commanding victory margin by the Yes/Green team is significant because it demonstrates beyond doubt that Kenyans have rejected the old retrogressive constitution in favour of the new one. They have also rejected lies and propaganda and chosen the truth. They did so with their votes, as required in a democratic exercise. The process was free, fair, transparent and democratic. It was also peaceful. The tallying of votes was conducted in a transparent manner. The results, therefore, are not in dispute. Kenyans have won. That’s why their celebrations are more than deserved. There is no war. Nobody has been killed because s/he voted for or against the new constitution. This is the way it should be.

But this victory is just the beginning of a long process of social, cultural, economic, political, legal and institutional reconstruction. For the past fifty years, Kenyans have undergone traumatic experiences characterized by gross human rights violations, economic and political crimes. During those long years, rules, laws and the constitution had little meaning in the lives of the majority of the people. Politics became a bad word. Political power and money were elevated to the position of the gods and worshipped. The economy stalled. The infrastructure decayed. Life became a burden for the majority of the people. Only a tiny minority benefited from the country’s abundant resources. Inequality, inequity and injustice – not abundance and freedom - were liberally distributed among Kenyans. For fifty years, Kenyans have been a disillusioned lot. Each time they have had legitimate expectations of prosperity, a thriving democracy, a functioning governing system and a responsive leadership; their hopes have been dashed.

The new constitution promises to turn things around. If implemented fully and promptly, the problems of the past might be discarded for ever. Are Kenyans up to the challenge?

The implementation process is one daunting task; full of both promises and dangers. But the first critical thing Kenyans must appreciate is that a constitution is an organic document. It must be read, understood and implemented as a whole. One cannot cherry-pick bits and pieces depending on his or her idiosyncratic needs or wants. A chapter, section or provision may not necessarily be what one wanted, however, it is imperative that implementation be conducted with equal emphasis to all parts of the constitution. The only difference in emphasis permitted would be with respect to the over-arching application of the Bill of Rights.

In other words, the fundamental rights and freedoms enshrined in the new supreme law apply equally to a “green” as it does to a “red” or “watermelon.” Discrimination is illegal regardless of how one voted. But the main problem emerges with implementation. It is reasonable to assume that those who were opposed to the new constitution would not have ceased their opposition merely because they have lost. In as much as the new constitution is for all Kenyans; those responsible for its implementation must, of necessity, be the people that strongly and unequivocally supported its ratification. It would be dangerous to place opponents of this charter in charge of giving it life and meaning.

In that regard, many senior government officials – particularly cabinet ministers, assistant ministers, permanent secretaries and heads of state corporations - who openly opposed and campaigned against the draft, ought not to be responsible for any aspects of implementation. This would avoid creating opportunities for opponents of the draft to sabotage its implementation in order to prove that it is “unworkable.” Moreover, the constitution itself makes clear that certain key government posts need to be cleansed from entrenched bureaucratic interests and forces. That is why it requires prompt replacements for the Attorney General, Chief Justice, Director General of the NSIS, head of police, administration police and prosecutorial services, Auditor General and other key positions.

The new constitution creates mechanisms for its implementation. It prescribes how new institutions will be established and staffed. For instance, it deliberately prescribes that the Constitutional Implementation Oversight Committee be formed by Parliament to oversee the implementation. But this is a new creature; separate and distinct from the Parliamentary Select Committee, which is deemed to have died a natural death on August 4th. The Constitutional Implementation Oversight Committee is like an advisory board in a company. It’s supposed to advise; not run the company on a daily basis. The core business of implementing the constitution has been vested in the Commission for the Implementation of the Constitution. Then there are other constitutional bodies like the National Land Commission; the Commission on Revenue Allocation Commission; the National Police Service Commission; the Public Service Commission; the Independent Electoral and Boundaries Commission; the Judicial Service Commission; the Public Service Commission; the Salaries and Remuneration Commission; the Kenya National Human Rights and Equity Commission; the Parliamentary Service Commission; the Teachers Service Commission; and the National Police Service Commission.

These are all independent constitutional bodies. In addition to the creation of the Supreme Court and the restructuring and reconstitution of the entire judiciary, the constitution provides for the respective roles of the executive, the National Assembly and the people. In this arrangement – and except as provided for by the constitution itself - the executive chooses; the legislature vets; and the people hold those appointed to account. It is therefore important for each institution, organ or office of state to recognize the role the constitution gives it so as to avoid unnecessary conflicts, rivalries, competition or attempts at the usurpation of power.

Kenyans must demand that implementation be done by competent, ethical and skilled professionals rather than by political hacks. If implemented fully, properly and promptly, past wrongs and misadventures will be buried forever. However, if implementation is mishandled or sabotaged, the constitution might turn out to be just another conman-ship. That must never happen.