Constitution doesn’t deliver the promised land, optimism turns into pessimism

Friday July 14 2017

George Otieno Ndallo does the final touches on a painting of president Mwai Kibaki holding a copy of the Constitution during the promulgation in 2010. PHOTO | FILE | NMG


One of the remarkable things about my time in Kenya is how quickly optimism has turned to pessimism.

When I arrived in 2011, Kenyans were brimming with expectations. It seemed that the judiciary had taken an important turn. While the Nancy Barasa decision in 2012 was not universally heralded, it did seem to some of us at least to be a sign that powerful people could not act with complete impunity.

Other institutions were also renewed or reformed, and there were new bodies, like the Salaries and Remuneration Commission, to help manage the wage bill, and the Commission on Revenue Allocation to redistribute resources more equitably across the country.

In 2013, elections ushered in devolution, for which hopes were spectacularly high. Many people believed (mistakenly) that governors would be more akin to chief executive officers of private companies than politicians. And since no one is less trustworthy in Kenya than a politician, this was a cherished illusion.

Today, there is far more pessimism. The judiciary has achieved some important reforms, but its reputation has been tarnished, not least by the obscure ruling in the last presidential election, and the unresolved corruption case involving Justice Philip Tunoi.

The Independent Elections and Boundaries Commission, which was once seen as a major improvement on the old electoral commission, has been unable to regain its footing even after the exit of the last set of commissioners. The SRC has appeared weak in confronting the rapacious demands of state officers for greater remuneration. And governors stand accused of arrogance and mismanagement.


There is a general sense that corruption has deepened since 2013 and that there are no credible political forces offering anything inspiring.

Environment was freer

This is not to say that there has been universal pessimism: In 2014, Afrobarometer data found that 58 per cent of Kenyans supported their county leadership. This was higher in rural than in urban areas, reflecting, I believe, small but important improvements in infrastructure in previously neglected areas.

The 2016 Afrobarometer data showed that Kenyans felt that the environment was freer than in the past, and that the media was freer to report on government missteps. Nevertheless, on the whole, it was remarkable how quickly the optimism of 2012 and 2013 began to erode.

At the same time, almost immediately after counties were formed, the governors began pushing for a constitutional referendum to secure additional finances. Half of the public supported this push when Afrobarometer asked them in 2014.

What was striking about this for the external observer was that Kenya opted for broad and deep legal and institutional reform in 2010. Presumably, when a society decides collectively, as Kenyans did in adopting the new Constitution, to reinvent its formal institutions, it is affirming its belief in institutions as a mechanism of social change. Otherwise, why create a Senate, or counties, or the Salaries and Remuneration Commission?

It would seem to follow that the next step in the reform process is to actually utilise these institutions to secure specific changes. Of course, it is always possible in a democratic society for people to decide that formal institutions are not working and require fundamental change. A constitutional referendum is a legitimate way to achieve this.

It raises concerns, however, when constitutional reform becomes a way of life. Rather than the last option to consider when others have failed, it becomes the first option when people are dissatisfied with a particular policy.

In this case, it seemed to me, if in fact people felt that counties were not receiving adequate funds, there was a process by which parliament made (and still makes) those decisions on an annual basis. That process should involve public hearings, and in fact such hearings have been held. However, very few citizens, or even organised interests, have participated in them.

A mere handful had done so at the time of the referendum call. This revealed that the public did not see itself as having a role to play in influencing formal institutions as envisioned by the Constitution, but had already lost faith in new institutions (or never had any to begin with).

This exposes a central paradox. The global trend among democratic reformers in recent years has been toward greater openness and opportunities for direct citizen participation. This animating spirit is evident in Kenya’s Constitution, which is why it received broad public support in 2010. Yet the evidence since would suggest that many Kenyans expected the Constitution itself to deliver change, without any further action on their part.

They did not understand, and still do not understand, what the Constitution actually demands of them as citizens. It cannot deliver much unless citizens use the opportunities and information it promises them to influence, cajole, and reform the political system.

How will this gap between citizen expectations and citizen agency be closed?

Jason Lakin is Kenya country director for the International Budget Partnership. E-mail: [email protected]