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.

A Constitution For All

A version of this article was previously published in the Star.

This week marks the fourth anniversary of the promulgation of the Kenyan constitution.  The significance of a country’s constitutional history cannot be overstated, for it is as a reminder of where the nation has come from and the lessons it has learnt. On this anniversary, Kenyans could do worse than take some time to reflect on the process of constitution-making and on the document that process has produced.

Much of the last quarter century of our collective history was spent trying to undo the original sin committed at independence. In that time, we have been trying to reverse the dismantling of the majimbo constitution, concentration of power in the person of the president as well as the dilution of the bill of rights. The terms we use may be different but the arguments are still largely the same ones our parents and grandparents had. The concerns over marginalisation and exclusion remain.

In a paper titled Amending the Constitution -Learning from History that he presented at an International Commission of Jurists conference in 1992, our current Attorney-General , Dr Githu Muigai, noted what had happened in the first decade following independence: "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."

Effectively, as the Truth Justice and Reconciliation Commission noted in its report, the colonial state endured. Thus Jaramogi Oginga Odinga could declare “Not Yet Uhuru” and inspire the two-decade long struggle for the “Second Liberation” that started in 1990 and gave birth to the current constitution. And while it was very much a struggle to tame the “authoritarian administrative structure,” it also became conflated with notions of good governance, accountability and transparency, which made Kenya part of a global trend following the fall of the Berlin wall.

But lately, these realities seem to have taken a back seat to the struggle among politicians for governance arrangements that would suit them. There appears to be a dangerous sentiment that the underlying causes were either resolved by the promulgation of the constitution or that they can be safely swept under the carpet of “accept and move on.” In an article published over the weekend Dr Nzamba Kitonga, the former Chairman of the Committee of Experts that drafted the 2010 constitution, essentially admits that the process was hijacked by the political elite and details how, following the mind games played at Naivasha, the committee was “advised not to tamper with the pure presidential system agreement and several other new clauses.”

So much for a “people driven constitution”. But Dr Kitonga goes ahead to legitimate this usurpation, privileging the arrangements for electoral losers and reducing the role of “Wanjiku” in government to cheering on the sidelines. “In the rural areas wananchi are also grumbling,” he asserts.  “They say they no longer “feel” the government. They long for the days when an MP/minister would visit the grassroots to be “with them” and explain government policies at their level and in their grassroots language — including dancing, singing, cheering and generally inspiring the crowd.”

And so it is today that our current constitutional debates seem to be more about accommodating politicians and their greed and relegating the role of the people to performing traditional gigs for the elites entertainment. Governance has taken a back seat.

There has been little outrage so far this week when Nairobi County Deputy Governor revealed that when the defunct Nairobi Metropolitan Ministry spent nearly Kshs 437 million installinga camera and traffic lights system meant to tackle the capital’s notorious traffic jams, it neglected to include the synchronisation software that would actually make the system work. The fact that the Pakistani city of Peshawar was reportedly going to spend the equivalent of less than Kshs 20 million installing 260 cameras and three control rooms to monitor them while we spent more than twenty times that amount installing 51 (or that we eventually only installed 42 for the same cost) does not seem to bother most people.

The fact is, as the above example demonstrates, despite the change in constitutions the rapacious colonial state endures. Sadly, we have divorced our governance arrangements from the role they are meant to play in preventing such irregularities. Once again the constitution is in danger of being downgraded to fit our corrupt circumstance instead of being the mould into which our governance fits.  So today, we would much rather go to the streets to protest theft of political power (which is really only the opportunity to “eat”) than to protest the impoverishment and marginalisation that this has brought. I fear we are slipping back into the mould where we would much rather starve with one of our own in power, than set up systems that ensure all have square meals. We are still content with the symbols of democracy and “development” while forsaking the substance. All this reveals, as one of my friends put it, “how hollow the transformation wrought by the new constitution.”

It has been said time and again that constitutions live, not on paper, but in the hearts of the people. If they are to be any good, they have got to work in the interests of the many, not of the few. Our political elites have for too long enjoyed too many seats at the constitutional table and their voices and ambitions have for too long been allowed to crowd out the call from the masses for accountable governance that responds to their needs, that defends them from the indignities of deprivation and poverty, protects them from wanton violence, treats them as human beings everywhere deserve to be treated, ensures they have the opportunity to actualize their dreams and that offers a better future for their children.

As we mark the fourth anniversary of the promulgation of our constitution, and as we debate the possibilities and opportunities of amending it, it is my desperate –some might say desperately unrealistic– hope that it is the welfare of wananchi, not that of the current crop of wenyenchi, that will be the uppermost consideration animating our conversations.