In March, when President Uhuru Kenyatta delivered his State of the Nation address, he was bullish about the political transformation and the deepening of democracy.
He took pride in having assented to 136 laws during the life of the 11th Parliament, one of the highest in the country’s history.
“Our democracy has matured,” he said. “I took office as an embodiment of the transition to a new constitutional order. Since then, there have been a number of significant transitions, especially in the Judiciary with a full bench in the Supreme Court led by the second Chief Justice under the new Constitution.”
Since 2010, Kenya has seen a revamped Judiciary and the creation of 24 commissions and two independent offices that are meant to protect the sovereignty of the people and ensure that all state organs observe democratic values and principles.
The independent offices include those of the Auditor General and the Controller of Budget.
Also up and running are the 47 Counties, with the devolved County governments which are now in charge of dispersing political power and economic resources at the grassroots level.
Nzamba Kitonga, a Nairobi-based lawyer who chaired the Committee of Experts who drafted the Constitution, says that the 11th Parliament has done well on legislation, as most of the laws that were to breathe life into the 2010 Constitution have been enacted.
But Mr Kitonga cites policy as an area where the Jubilee government has in some instances tried to subvert the implementation of the Constitution.
He cited the parliamentary amendment on the appointment of the Chief Justice, where the government changed the law to allow the Judicial Service Commission to submit to the president three names from which to pick, instead of providing just one.
Mr Kitonga went to court and had the amendment overturned.
Security Laws (Amendment) Act, 2014
He also cites the Security Laws (Amendment) Act, 2014, part of the war against terrorism, which critics said took away fundamental civil liberties and restricts the freedom of the press.
The Act made substantive amendments to the Penal Code, Criminal Procedure Code, Evidence Act, Prevention of Terrorism Act and National Services Act, which forced the opposition to go to court and some of the articles were suspended.
“Politicians will always want more power and always find ways of circumventing the constitutions if they can get away with it. However, Kenyans have learnt that they can go to court and challenge anything that is unconstitutional.
Devolution — which was the pillar of the 2010 Constitution — has been the source of conflict between the national government on one hand and the opposition and governors on the other.
President Kenyatta said that his administration’s championing of devolution goes beyond the legal processes of implementation, by making the timely transfer of funds, far above the constitutional threshold, by increasing the percentage of shareable revenues of the budget from 15 per cent to 34 per cent to the Counties.
President Kenyatta said his administration has accelerated the transfer of functions and personnel to the County governments in accordance with Article 187 and the Fourth Schedule of the Constitution.
Still, the Jubilee government is yet to shake off the tag of being “anti-devolution.”
Governors complain that Treasury deliberately delays disbursement of funds to the Counties, and that allocations are insufficient.
Bomet Governor Isaac Ruto — now a principal of the opposition alliance Nasa — has made it a campaign issue, pushing for 45 per cent of the budget to be allocated to Counties.
Constitution experts say that besides delays in remission of funds to County governments, the devolved units are facing challenges of having citizens with inadequate civic education which hinders their effective participation in County governance and subsequently inadequate legislative capacity in the County governments.
According to Prof Yash Pal Ghai, a constitution expert and the director of the Katiba Institute, Kenya has experienced some additional values in respect of devolution including; self-government at County level, equitable sharing of national resources, and fair treatment of the minorities and marginalised communities as per Article 174.
He, however, says that the jury is still out on whether constitutional commissions and independent offices have achieved their objectives of protecting the sovereignty of the people by ensuring that all state organs observe democratic values and principles, or have instead been co-opted by state institutions, and descended into inefficiency, greed and irresponsibility.
Two-thirds gender principle
The government has also failed to pass the constitutional requirement of two-thirds gender principle that was meant to usher in gender equity in political representation, a situation which could see the incoming 12th parliament declared illegal if someone goes to court.
While leaving office in December 2015, the chairman of the now defunct Commission for the Implementation of the Constitution (CIC), Charles Nyachae, lamented that Kenyans cannot say that the constitution has been fully implemented when values like transparency, accountability, equity and equality have not been attained.
The functions of CIC were taken over by the Kenya Law Reform Commission.