Tuesday, 27 August 2024, marked 14 years since promulgating the Constitution of Kenya, 2010. It has been billed as a progressive and transformative document, buttressing Kenya’s liberal democratic credentials. At the heart of the Constitution was a desire to break with an authoritarian past.
The Constitution expanded the Bill of Rights and created a two-tier system of government, the National Government and 47 County Governments. The County Governments exercise devolved functions, bringing the Government closer to the people.
The Constitution has stood without amendment, though there have been attempts at amending it, through the Okoa Kenya and Building Bridges initiatives. It has been tested, particularly through Executive overreach, but the Judiciary has routinely affirmed and enforced its provisions. Recently, Kenyans protested against the government’s budget and financial probity. It culminated in the withdrawal of the Finance Bill, 2024, through which punitive tax measures had been mooted.
Unfortunately, there were instances of the use of force against peaceful protesters, which is a direct affront to the constitutional promise of the right to peaceful protest. Corruption has continued to be a plague in Kenya’s body politic, despite elaborate provisions on public financial management and the creation of independent offices of oversight, audit, and prosecution for offences.
Prof Okoth-Ogendo laid this out as the ‘paradox of constitutions without constitutionalism’: that is, a constitution promising liberty under the law, but political imperatives and action overriding the law. While enacting the new Constitution was a major step in transforming Kenya to a liberal, democratic state that works for its citizens, much remains to be done.
Prof Migai Akech has identified the exercise of power by bureaucrats (‘barons’) often quietly away from the public glare, without accountability. One may add that the overcriminalisation of petty offences and the over-regulation of economic activity through punitive licensure laws are other avenues through which the promise of the 2010 Constitution remains unfulfilled.
Indiscriminate arrests of bloggers and protesters in the wake of protests against the Finance Bill, 2024 have added a chill to the constitutional climate. Still, the journey must continue. As American jurist and legal philosopher Learned Hand warned, ‘liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it.’
It is in the hearts of Kenyans that the Constitution of Kenya must live.
