A year and a half in, what have we learned thus far from Kenya’s constitutional implementation process?
While it is premature to pass a holistic judgment on the brilliance and blunders of the process in Kenya, it is not too early to reflect on areas where the next generation of reformers — such as those in Tanzania or Ghana — would do well to exercise caution.
One of the major blunders, of course, was the lack of clarity around the transitional election date, which confusion has already necessitated the intervention of the courts.
While this is possibly the highest profile error in the Constitution, it is symbolic of the fact that the major challenges facing it relate specifically to the ambiguities of the transitional phase.
We are fast approaching one of the key cut-offs as prescribed in the Constitution: February 27.
This marks 18 months since the document’s approval, and is, as per the Fifth Schedule, the deadline for passage of key pieces of implementing legislation, such as the land Bills recently introduced to parliament.
The drafters of the Constitution foresaw a complex and evolutionary process of constitutional implementation, which is why the Fifth and Sixth Schedules provide a transitional roadmap that extends for five years.
As we reach the 18-month mark, however, it is clear that a major oversight in the conceptualisation of the Fifth Schedule was to set deadlines as though policymaking was to be controlled by a single branch of government.
A single deadline for legislation has had the perverse effect of tilting the policymaking process back toward the executive, one of the principal ills of the old dispensation that the Constitution seeks to remedy.
As we saw last August at the one-year mark, and as we are seeing again now, legislation is forwarded in batches to parliament by the executive a week or two before critical deadlines, making it impossible to meet the intention of the new Magna Carta: Enhanced public deliberation on vital legislation.
Explicit rules needed
This problem might have been averted if the executive had been required, as it is under the new rules governing the budget process, to present legislation to parliament two months before the deadline for passage.
Thus, one lesson of the process of constitutional implementation is that, during the transition phase, explicit rules must bind all of the parties.
Assuming that the key state institutions, designed specifically to balance each other, would collaborate to meet a deadline was foolhardy.
Since the executive maintains the policymaking initiative, the rules of passage should have been tilted away from it and toward parliament, to avoid usurpation by delay.
The creation of the Constitutional Implementation Commission was an inspired attempt to check the executive’s control of the policy process, and it has made space available for public participation, but largely in ad hoc fashion.
Without the ability to control the timelines, and given the torrent of Bills, it has also tended to be swept up in the tide.
Devolved units slighted
If the executive has been given too much control of the process within the national government, it is also the case that the new devolved units have been slighted at this stage.
The government did foresee the need for a body to guide the process of devolution in the form of the Task Force on Devolved Government.
However, the Task Force suffered from a number of limitations, the most obvious being its short lifespan.
Because the Task Force expired before most key legislation was presented and debated, there is no voice representing county issues on each individual piece of legislation.
For example, the Task Force’s final report proposes a framework for assignment of functions across levels of government, but it is no longer present to try to apply this framework to individual Bills as they arise, nor to comment on ministerial plans to devolve and retain specific functions.
The yet to be elected Senate will have responsibility for representing county interests on “any Bill concerning county governments”; the Constitution states that the National Assembly shall perform this function until the Senate comes into effect.
But this again tilts the playing field toward existing institutions, rather than those that should be empowered under the new order.
A constitutional body ought to have been charged with representing county interests over the life of the Fifth Schedule.
It could have been coupled with a body charged with representing the public, which has also been overwhelmed by the pace of legislation.
These two bodies could have been required to offer inputs at public hearings organised during the parliamentary debate stage of the approval process.
The principal lesson is that if a constitution is meant to fundamentally alter the balance of power, the transitional period must be carefully designed to favour the emergent powers, not the ancient regime.
Dr Jason Lakin is a programme officer and research fellow at the International Budget Partnership. [email protected]