Saving Kenya From Its Elites Will Take More Than A New Constitution

In an article last month, economist Dr David Ndii expounded on the changes that the country’s 2010 constitution has rung in as well as the reduced opportunities for extraction of rents. He opined that the imperial presidency, traditionally the bane of Kenya’s democracy, had been effectively dismantled and that devolution had dramatically reduced the payoffs for corruption if not exactly ensured accountability. “There just aren’t that many large carcasses for all the big ravenous hyenas in Nairobi. The cheese has moved. The rats have not. They slept through the revolution,” he wrote.

However, recent actions by the government of President Uhuru Kenyatta demonstrate that not only have the rats refused to acknowledge the revolution, they are actively undermining it and re-instituting the networks and power relationships that have sustained them for over half a century.

It is not the first time this has happened.

Just before independence in 1963, the country adopted a new constitution that similarly sought to constrain the power of the governing elites. A 1992 paper by Prof Githu Muigai, now the country’s Attorney General, explained what followed. "The colonial order had been one monolithic edifice of power that did not rely on any set of rules for legitimization. When the Independence constitution was put into place it was completely at variance with the authoritarian administrative structures that were still kept in place by the entire corpus of public law. Part of the initial amendments therefore involved an attempt - albeit misguided - to harmonise the operations of a democratic constitution with an undemocratic and authoritarian administrative structure. Unhappily instead of the latter being amended to fit the former, the former was altered to fit the latter with the result that the constitution was effectively downgraded."

Similarly, over the past few weeks, the country has seen legislation introduced which reverses many of the democratic gains enshrined in the constitution. Growing intolerance has seen laws enacted by the colonial regime to stop the independence movement employed to prosecute two bloggers for insulting President Kenyatta, with one sentenced to a two-year jail term.

Just as his father, founding President, Jomo Kenyatta, progressively downgraded the independence constitution and to recreate the colonial edifice, so today Uhuru Kenyatta is engaged in the process of undermining the 2010 constitution and once again concentrating power within the walls of one office and in the hands of one man.

However, the first President Kenyatta would not have accomplished his fete without the acquiescence and support of the rest of the power elite who were rewarded with opportunities to corruptly enrich themselves. Similarly today, his son needs the help of his fellow elites to reconstitute the system of autocratic kleptocracy and patronage that was perfected by jomo Kenyatta’s successor, President Daniel arap Moi. And that help has not been short in coming.

Dr Ndii reckons the constitution has stripped the Presidency of 80-90 percent of its power and that today the President has to exercise what’s left through influence and not authority. However, that does not appear to be the way things are actually working out. With his coalition controlling both houses, the President faces little opposition from a Parliament that appears more concerned about taking full advantage of opportunities to fleece the public. The hurried and chaotic passage of the security law, along with the Senate’s acquiescence in its own marginalisation, demonstrated just how much it has been transformed into a paper tiger. The judiciary has fared little better. From the craven Supreme Court judgement over the 2013 presidential election to the inaction over regular infringements of its orders, the judiciary has proven itself to be unwilling to court Executive displeasure.

Ditto the National Police Service. After decades of doing the executive’s dirty political work instead of actually protecting the public, one might have expected that they might revel in some independence. One would be wrong. And even before the passage of the security law, there was already a concerted effort to bring the service back under the ambit of the Executive.

The fact is, the constitution may have prescribed a weaker presidency, but when the institutions that are meant to check its power instead opt to collude with it, it can be pretty powerful. Especially as a conduit for and dispenser of patronage, the traditional role the imperial presidency has played for the political elite. And true to form, President Kenyatta has kept the gravy train rolling.

On his watch, government mega-projects, whether it is the dubious $13 billion standard gauge railway or the stalled $200 million project to provide laptops to primary school students, or the nearly $400 million single-sourced national surveillance system, have all been tinged with scandal and controversy. Just a year after his inauguration, the President authorised the payment of nearly $17 million to two shell companies, part of the Anglo Leasing scam which cost the country over $600 million. And just recently came revelations that the government had silently prepared legislation prohibiting public scrutiny of its spending on the military, intelligence and police, after the Auditor General raised queries on $100 million in expenditure and cash transfers from the Ministry of Defence. And as poachers decimate the country’s elephants and rhinos, at least one investigative report showed that the government not only knew who they were but actually provided protection to the kingpins.

Following independence, it took Jomo Kenyatta a few years to dismantle the constitutional restraints on the Presidency. His son seems to have taken up the task with gusto. Like his father, he argues that the authoritarian powers are necessary. On the other hand, Dr Ndii believes that the orgy of looting that is underway is actually “an unintended and transient consequence of [the constitution’s] effectiveness.” However what remains abundantly clear that, it will take more than a new constitution to save Kenya from its rapacious elites.