Marking a Decade of Kenya's 2010 Constitution
Author: Innocent Otuma
The Constitution of Kenya of 2010 was promulgated on the 27th of August 2010 after a culmination of events that led to this memorable event.
This is a Constitution that brought a lot of hope to the people of Kenya since it was the first homegrown constitution that was developed by the people and for the people since the first ever Constitution that was granted to us by the British Government.
Many people have been hopeful about this new Constitution since it was a fresh lease of life from the troubled history of Kenya especially on civil and political violations of rights while giving total disregard to the Constitution then.
History shall remind us of the Kenyatta regime where the Constitution was a persuasive document that was used and manipulated by the then regime to carry out their own interests.
An example of such a violation was the Ngei amendment which was an outrageous and bold move by the then regime. At the time, Paul Ngei had been convicted of an electoral offence and as per the Constitution, he would not be eligible to run for elections for a period of 5 years which generally meant the next electoral cycle.
Mzee Jomo Kenyatta made an amendment where the President was allowed to pardon electoral offenders thereby pardoning his friend Paul Ngei.We shall not forget the harsh and painful events that marked President Moi’s tenure which is better known as the Nyayo era where blatant violations of human rights pitted the rule with the enforced disappearances and deaths of hundreds of political detainees some of which cannot be explained to date.
The Late President Kibaki’s glamorous rule was dimmed by the 2007/08 post election violence that will forever be remembered as the event that almost brought Kenya to her knees and is better left forgotten. This was after the hotly contested Presidential elections between the then ODM Party leader Raila Odinga and PNU’s Mwai Kibaki who was also the incumbent President.
The birth of the New Constitution brought to light a ray of hope that was felt throughout the country. It brought several changes that brought a bulk of reforms giving Kenya a facelift. It is therefore not in vain that it is considered the most progressive constitution in the world as per ISS Africa. Among the changes were:
1. Changes to the powers of the President 2. The establishment of independent institutions 3. The entrenchment of the Bill of Rights 4. Article 255 of the Constitution of Kenya
The powers of the President especially Presidential appointment powers were given to other institutions and offices for example the appointment powers of the Chief Justice of Kenya was given to the Judicial Service Commission established under the Constitution of Kenya.
This brought about the spirit of separation of powers that was a shift from the time when the CJ was a Presidential appointee and therefore the Judiciary was under capture by the Executive.Independent institutions such as the IEBC were created to cure the mess that was done by the infamous Electoral Commission of Kenya.
Although the IEBC has received its fair share of shortcomings and controversies ever since its establishment, we can generally agree that it has brought a better, more transparent and more effective conduction of elections in the country and we can generally applaud their work because, it could have been worse.
The JSC has done a good job in keeping judges and magistrates in check therefore ensuring that the administration of justice is smooth and fair.The Bill of Rights has been the golden leaf that has established the rights and freedoms in our country. Long gone are the days where people could be detained without trial.
Forgotten are the days where journalists and people who held an opinion against the government were detained and tortured until they sang the government tune.
We are past the dark times when prisoners and arrested persons were treated as lesser human beings and the dignity of all persons is upheld and no one is tortured or subjected to degrading human treatment by the state or any other person within the Republic of Kenya.Article 255 was the subject of discussion in the famous BBI case where it was later decided that the basic structure doctrine applies to Kenya but only as the provisions of Article 255 of the Constitution.
This is to cure the remedy where the Constitution could be changed as per the whims of the Executive or the ruling regime without the input of the people. Indeed, all sovereign power now belongs to the people of Kenya.
Although we have noticed gaps in the Constitution that need to be addressed for the realization of its full implementation, we applaud and celebrate the Constitution of Kenya of 2010 and it is my prayer that as the citizens of Kenya and the holders of all sovereign power, we shall uphold and defend the Constitution in the honour of those who historically struggled to bring freedom and justice to our land.
