By Tony Sisule
The hard part of Kenya\’s constitutional journey, which involved monumental struggles with authorities over two decades and two referenda is over.
The basic law is in place. The harder part, which will involve ensuring politicians, public officials and citizens do their part to give effect to the Constitution and uphold the rule of law has now began.
For this Constitution to give succour to the nation and propel Kenyans to their aspirations, something former President Moi liked to say would not happen when giving in to pressure will finally have to happen.
When caving in to demands for the repeal of Article 2A of the old Constitution, or the clamour to appoint a Vice-President after a year without one, President Moi would dismissively say in Swahili; "Haya wape hiyo tuone kama itaongeza sufuria za ugali".
Indeed, the ultimate measure of whether the new Constitution will have led to progress and had a positive impact on the lives of Kenyans will be if they will have more \’sufurias of ugali\’.
In other words, the new law must, within a reasonable time, lead to great improvements in how the nation is governed, narrow inequalities, and make the socio-economic situation of every Kenyan better.
Therefore, there are three key aspects we must monitor and evaluate very closely. In the short-term, the National Assembly needs to enact legislation as contemplated by the Constitution in the Fifth Schedule.
This will establish the structures required by the new dispensation, distribute functions between the national and county governments, ensure a smooth transition between the old and new order, and generally give effect to the new law.
For instance, there should be an expectation that in this early stage, courts will start to systematically uphold and enforce the Bill of Rights as anticipated in Article 23, and that there will be a reduction in cases of violations of rights.
In this first phase, Kenyans will need to be vigilant but also make a transition into hopeful and innovative people ready to succeed.
In the medium term, state officials and bodies should apply the Constitution and legislation as anticipated and progressively improving their performance in executing functions so that the corruption, impunity and inefficiency of the past disappear. In effect, there should be no police brutality, less bribe giving and taking and a parliament should be assertive in its legislative and oversight roles.
The national and county Executives will need to effectively execute budget allocations according to plans and the Judiciary will have to insist on its independence in interpreting the constitution and upholding the law. Kenyans will also expect to start seeing the effect of important changes such as Articles 60 to 68 on land which should lead to equitable access to, sustainable and productive use of, and better and cost effective administration of land.
These provisions should also eliminate gender discrimination in the application of land law ensuring women have more rights over, and control of, land, a key production resource. Good implementation will ensure improved economic output and livelihoods for all. Equally, Kenyans will want to see better and affordable access to courts. In essence, the Judiciary must clear that infamous backlog of a million cases and ensure that it does not build up again.
Ultimately, justice must be served by the courts in such fashion that respective groups, especially the traditionally disadvantaged such the poor, women and children, have speedy, dignified and satisfactory services. In this penultimate stage, citizens, media and civil society will have to remain vigilant to ensure we do not slide back to the horrid past. In the long term, if the implementation is successful, the \’sufurias of ugali\’ should have increased many times over so that abject poverty is banished from Kenya.
The nation should have a better managed, prosperous and equal society at this point. Every citizen who works hard and smart should have an equal opportunity to succeed. In this ultimate phase, public officials and bodies will need to be keen on continuously improving their performance so that the bureaucracy remains efficient and incorruptible.
By this stage, we should have historically minimal violations of rights and freedoms, with any such violation being met with vigorous administrative and court penalties against violators. In such an environment, Kenyans will fully enjoy their fundamental rights and freedoms as provided for in Articles 25 to 57. Granted Kenya, like many countries will, struggle in some respects to provide all the economic and social rights enshrined in Article 43 regarding food, health, housing, sanitation, water, education and social security.
However, where there are genuine financial and other constraints, the provisions of Article 20 should be adhered to by the state to ensure that courts enforce rights to the extent possible and state resources are put to the best use in order to give people the greatest enjoyment of these rights. The Supreme Court of India has demonstrated in recent cases that the Judiciary can play a constructive role in prodding the Executive to uphold economic and social rights within the limits circumscribed by resources. And as our free primary education has shown despite its problems, it is possible for the state to make a good effort at providing these rights to all.
Leaders will have to perform with exemplary flair and proceed in their work with probity. And we will need to see the recent performance in holding free and fair elections maintained. For instance, good implementation of the law will ensure that we have accessible and continuous registration of voters, democratic party nominations, reduction in logistical hiccups during elections, an end to administrative malpractices by election officials and vigorous prosecution of election offenders.
Whereas successful implementation of the law will require the participation and goodwill of all citizens and state officials, Section 4 of the Sixth Schedule confers the onerous responsibility of overseeing implementation on the Constitutional Implementation Oversight Committee of the National Assembly and the Commission for the Implementation of the Constitution.
These two bodies and other state agencies will need to put in place a mechanism to systematically collect data on these issues to ascertain progress and impact of the implementation on Kenyans and take necessary corrective actions.
In implementing the new law, these bodies need to keep the spirit that led to the enactment of the Constitution alive and hark back to the aspirations of Kenyans eloquently expressed in decades of discourse.
We can ill afford further delay in our quest for progress and prosperity. Let this new law be well executed so that we bequeath on posterity a just, equitable, wealthy and happy society.
(Tony Sisule has been a UN staffer advising the National Parliament of Timor-Leste in Asia-Pacific)