Four years after promulgation, Kenya’s Constitution is at a crossroads with calls for a referendum pitting the opposition and a section of Governors against the government in a political context.

According to the implementation schedule, the country has a year to enact all the laws required to fully operationalise the Constitution. But it is way behind schedule, with parliament having recently extended the deadline for enactment of five key Bills from August to March next year.

At the centre of the demands for a referendum is the implementation of devolution, a key pillar of the Constitution that came into effect on August 27, 2010.

However, experts blame the emerging problems with implementation of the Constitution on the lack of “a culture of constitutionalism and politicians’ knack for self-preservation”.

Prof PLO Lumumba, who served as secretary of the Constitution of Kenya Review Commission that came up with the first draft of the law in 2004 before it was disbanded, says the Constitution in itself is not sufficient. The country needs a culture that respects the supreme law in all operations, says the law scholar.

“While a new constitutional dispensation has produced many positive results, Kenyans have the misconception that the Constitution is a magic wand that can solve all issues,” said Prof Lumumba, who has also served as a consultant in the ongoing Tanzanian constitution review. “Kenyans themselves must breathe life into it and make the document work for them.”

On calls for a referendum, the law don argues that it should be held after no fewer than 10 years from the time of promulgation to allow devolution to mature.

Nzamba Kitonga, who chaired the Committee of Experts that harmonised various drafts ahead of the referendum in 2010, says it is imperative that Kenyans wait until all the relevant laws have been passed before seeking to conduct an audit of the supreme law.

While appreciating that the implementation has progressed well and parliament has been following the procedure laid down in the Constitution, Mr Kitonga noted that there are a few areas where political and regional interests have negated the principles and the spirit of the document.

One of them is the laxity of parliament in enacting relevant laws on schedule and the tendency to bring the Bills at the last minute, which did not allow time for proper scrutiny and consequently gave rise to faulty provisions.

The constitutional expert cited as among the successes of the new document the presidential election petition last year and the devolution of power and resources.

“Kenyans are beginning to appreciate the fact that resources have gone down to the grassroots level and that they have the power to make decisions on issues affecting their lives,” said Mr Kitonga.

Prof Lumumba has co-authored a book with Luis Franceschi, titled The Constitution of Kenya 2010; An Introductory Commentary, in which they argue that the structural changes and reforms in the judiciary under the new Constitution, although fraught with difficulties, must be seen as an attempt to purge it of corruption, lethargy and in some cases an arrant incompetence.

Gad Awuonda, one of the lawyers who were involved in the drafting of the Constitution, is however concerned that some of the laws passed have not kept to the principle and spirit of the Constitution.

“At the beginning of every chapter it provides principles and objectives of what needs to be done while drafting Bills for constitution implementation, but some of them have not been followed,” said Mr Awuonda. “For instance, land-related laws... they do not conform to the principle of the Constitution, and that is why the National Land Commission and the Ministry of Lands are fighting about who plays which role.”

He argued that some sections of the Leadership and Integrity Bill that was enacted to operationalise Chapter 6 of the Constitution, which bars those with questionable characters such as a criminal record from assuming public office, did not stick to the principles of the Constitution.

Prof Lumumba and Mr Kitonga concur that the chapter on integrity, as well as the Ethics and Anti-Corruption Act were significantly watered down at the negotiations in Naivasha due to vested political interests while most Kenyan voters do not mind electing those with a criminal past to positions of responsibility.

Another challenge is the mandate of the Senate, which, according to Mr Kitonga, was meant to be the Upper House but, due to the meddling in Naivasha, for the first time in the world a senate became a lower house.

But Prof Lumumba is adamant that the Senate ought not to have been there in the first place.

“The bicameral parliament is a like a mongrel since the Senate is neither an upper house nor a full parliament,” said Prof Lumumba.

“Initially, we suggested a Congress of Governors, like the one in South Africa, because one can only have a senate in a federal system to represent federal units, like in the US, Malaysia and Nigeria.”

Prof Lumumba also believes that there was no need for 47 counties and that the country would have been better off with the 14 that were recommended by the Bomas draft. He is also concerned that there are too many commissions that are created purely to create jobs for those looking for political rewards, adding that some of them should be merged to cut costs.

Prof Peter Wanyande, the convener of the Devolution Thematic Team at the Commission for the Implementation of the Constitution (CIC), argues that insufficient understanding of the Constitution by a cross-section of actors has led to some institutions failing to adhere to or respect their roles and functions and therefore interfering with the roles of others.

Prof Wanyande said that there is also a tendency to politicise constitution implementation.

“When you politicise it, you end up creating confusion or discontent among sections of society and they begin to feel that the Constitution is not working and that they would rather things remained the way they were,” he said. “That is a major challenge to the implementation.”

Prof Wanyande, however, acknowledged that the establishment of the necessary structures and institutions for devolution take time.